<\/span><\/h3>\nWhile 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
\nv. Switzerland, 1988, \u00a7\u00a7 45-46; Moreira Ferreira v. Portugal (no. 2) [GC], 2017,.83; Heglas v. the Czech Republic, 2007,.84).<\/p>\n
It is not, therefore, the role of the Court to determine, as a matter of principle, whether particular types of evidence \u2013 for example, evidence obtained unlawfully in terms of domestic law \u2013 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, \u00a7\u00a7 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,\u00a7 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, \u00a7\u00a7 87-88).<\/p>\n
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 (G\u00e4fgen v. Germany [GC], 2010,.164).<\/p>\n
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 (Horvati\u0107 v. Croatia, 2013), exertion of pressure on a co-accused, including the questioning of a co-accused in the absence of a lawyer (Erkapi\u0107 v. Croatia, 2013; Dominka v. Slovakia (dec.), 2018; Stephens v. Malta (no. 3), 2020, \u00a7\u00a7 64-67; Tonkov v. Belgium, 2022, \u00a7\u00a7 64-68); use of planted evidence against an accused (Layijov v. Azerbaijan, 2014,.64; Sakit Zahidov v. Azerbaijan, 2015, \u00a7\u00a7 46-49; Kobiashvili v. Georgia, 2019, \u00a7\u00a7 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 D\u0131\u015f Tic A.\u015e. v. Turkey, 2018, \u00a7\u00a7 107-112; see also Avagyan v. Armenia, 2018,.41; G\u00fcla\u011fac\u0131 v. Turkey (dec.), 2021, \u00a7\u00a7 35-40; and Zayidov v. Azerbaijan (no. 3),* 2023,.89).<\/p>\n
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, \u00a7\u00a7 69-83; Khan v. the United Kingdom, 2000, \u00a7 34; Dragojevi\u0107 v. Croatia, 2015, \u00a7\u00a7 127-135; Ni\u0163ulescu v. Romania, 2015; Drago\u015f Ioan Rusu
\nv. Romania, 2017, \u00a7\u00a7 47-50; Falzarano v. Italy (dec.), 2021, \u00a7\u00a7 43-48; Lysyuk v. Ukraine, 2021, \u00a7\u00a7 67- 76), and search and seizure operations (Khodorkovskiy and Lebedev v. Russia, 2013, \u00a7\u00a7 699-705; Prade v. Germany, 2016; Tortladze v. Georgia, 2021, \u00a7\u00a7 69, 72-76, concerning the search of the premises of an honorary consul; Budak v. Turkey, 2021, \u00a7\u00a7 68-73 and 84-86, concerning, in particular, the importance of examining the issues relating to the absence of attesting witnesses).<\/p>\n
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, \u00a7\u00a7 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\u2019s conviction).<\/p>\n
Therefore, the use in criminal proceedings of statements obtained as a result of a violation of Article 3 \u2013 irrespective of the classification of the treatment as torture, inhuman or degrading treatment \u2013 renders the proceedings as a whole automatically unfair, in breach of Article 6 (G\u00e4fgen v. Germany [GC], 2010,.166; Ibrahim and Others v. the United Kingdom [GC], 2016,.254; El Haski v. Belgium, 2012,.85; C\u0113snieks v. Latvia, 2014, \u00a7\u00a7 67-70). The same principles apply concerning the use in criminal proceedings of statements obtained as a result of ill-treatment by private parties (\u0106wik v. Poland, 2020).<\/p>\n
This also holds true for the use of real evidence obtained as a direct result of acts of torture (G\u00e4fgen 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 (G\u00e4fgen v. Germany [GC], 2010,.178; El Haski v. Belgium, 2012,.85; Zli\u010di\u0107 v. Serbia, 2021,.119).<\/p>\n
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, \u00a7\u00a7 263 and 267; Ka\u00e7iu and Kotorri v. Albania, 2013,.128; Kormev v. Bulgaria, 2017, \u00a7\u00a7 89-90).<\/p>\n
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\u2019s 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\u2011treatment, 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).<\/p>\n
In Sassi and Benchellali v. France, 2021, \u00a7\u00a7 89-102, the Court examined the applicants\u2019 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 Guant\u00e1namo. 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\u2019 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\u2019 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.<\/p>\n
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).<\/p>\n
In this context, the Court will examine, in particular, whether: the defence knew the witness\u2019s 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\u2019s 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).<\/p>\n
In Adam\u010do v. Slovakia, 2019, \u00a7\u00a7 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\u2019 failure to provide the relevant reasoning concerning the applicant\u2019s arguments.<\/p>\n
By contrast, in Kadagishvili v. Georgia, 2020, \u00a7\u00a7 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\u2019 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\u2019 case without full and proper examination at the applicants\u2019 trial.<\/p>\n
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, \u00a7\u00a7 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\u2019s status as a victim of trafficking should be considered as a \u201cfundamental aspect\u201d 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\u2019 status as victims of trafficking prevented the authorities from securing evidence which may have constituted a fundamental aspect of their defence.<\/p>\n\n
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Fairness & Participation Article 6.1 of the Convention \u201c1. In the determination of … any criminal charge against him, everyone is entitled to a fair… hearing… by [a] tribunal …\u201d 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[345],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23199"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=23199"}],"version-history":[{"count":10,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23199\/revisions"}],"predecessor-version":[{"id":23524,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23199\/revisions\/23524"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=23199"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=23199"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=23199"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}