Human Rights and Access to Justice in the EU, Strasbourg, Council - PowerPoint PPT Presentation

Human Rights and Access to Justice in the EU, Strasbourg, Council of Europe 26-28 September 2018 European Judicial Training Network Prof. Dr. Danutė Jočienė Justice of the Constitutional Court of Lithuania Former Judge of the European Convention on Human Rights (2004-2013) danute.jociene@lrkt.lt

Art. 6 of the ECHR: • Fundamental principles of the right to a fair trial: • Access to a court; • Independent and impartial court (judge); • Fair trial; • Public hearing within a reasonable time ; • Procedural guarantees in [every] proceedings (Art. 6 § 1); • Procedural guarantees in criminal proceedings (Art. 6 §§ 2,3); etc.

Art.6para1oftheEuropeanConventiononHumanRights (the Convention or the ECHR) – The right to a court (access)andtoa fair trial: • 1. In the determination of his civil rights and obligations or of any criminal charge against him, • everyone is entitled to a fair and public hearing within a reasonable time • by an independent and impartial tribunal established by law. • Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security [ … ]

Art. 6 para 2, 3 of the ECHR/criminal cases: • 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. • 3. Everyone charged with a criminal offence has the following minimum rights: • (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; • (b) to have adequate time and facilities for the preparation of his defence; • (c) to defend himself in person or through legal assistance of his own choosing [ … ]; • (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; • (e) to have the free assistance of an interpreter if he cannot speak the language.

Art. 6 – very important Article: • Case law of the European Court of Human Rights (ECtHR): • no justification for interpreting Article 6 § 1 restrictively ( Perez v. France case [GC], No. 47287/99, 2004 02 12) ; • very often invoked by the applicants before the ECtHR from different perspectives ( i.e. , fair trial requirement, access to a court; defence rights, equality of arms, admission/contestation of an admitted evidence, etc.).

Subsidiarity and the Role of the ECtHR: • It is not the European Court‘s function to deal with errors of fact or law allegedly committed by national courts or to substitute their own assessment unless they may have infringed the rights and freedoms protected by the Convention ( García Ruiz v. Spain [GC], no. 30544/96, §§ 28-29, ECHR 1999-I). • Art. 19 of the ECHR – the unique Role of the Court.

The Role of the Court: • The ECtHR is not an appellate court; • Art. 6 does not allow the ECtHR to act as a court of fourth instance; it cannot replace national courts • (Bykov v. Russia [GC], 10/03/ 2009, § 88); • Art. 6 establishes a very strong presumption of facts as found by domestic courts unless the domestic proceedings breached the essence of the Art. 6 of ECHR.

Admission of evidence: • General principles: Mantovanelli v. France , No. 21497/93, 18/03/1997, § 34: • The admissibility of evidence and the way it should be assessed are primarily matters for regulation by national law and the national courts ( Garcia Ruiz v. Spain [GC]; • The Convention does not lay down rules on evidence as such... • The Court therefore cannot exclude as a matter of principle and in the abstract that evidence obtained in breach of provisions of domestic law may be admitted. • It is for the national courts to assess the evidence they have obtained and the relevance of any evidence that a party wishes to have produced. •

Mantovanelli v. France/principles: • 33. [...] one of the elements of a fai r hearing under Art. 6-1 is the right to adversarial proceedings; • each party must in principle have the opportunity not only to make known any evidence, but also to have knowledge of and comment on all evidence adduced with a view to influencing the court’s decision (Nideröst-Huber v. Switzerland, judgment 18/02/1997, § 24). • where an expert has been appointed by a court, the parties must in all instances be able to attend the interviews held by him or to be shown the documents he has taken into account. • What is essential is that the parties should be able to participate properly in the proceedings before the "tribunal" (see, mutatis mutandis, the Kerojärvi v. Finland judgment of 19 July 1995, § 42). • 34. [...] The Court has to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair under Art. 6-1 (see, mutatis mutandis, the Schenk v. Switzerland, judgment 12/07/88, § 46).

This presentation focuses on such aspects under Art. 6: • Fairness of the proceedings as whole ; • Duties of national courts in admitting evidence; • Disclosure of evidence; • Admission of sole and/or decisive evidence; • Admission of evidence obtained by the police [active] incitement to commit a crime; • Admission of secret evidence; • Admission of evidence obtained in violation of Article 3 of the Convention (prohibition of torture, inhuman and degrating treatment); • Admission of evidence obtained in violation of Article 8 of the Convention (respect for private and family life, home and correspondence).

Rinkūnienė v. Lithuania , inadmissible (No. 55779/08, 01/12/09) /Assessmentoftheproceedingsaswhole: • Medical negligence case/death of the applicant‘s husband: • The applicant complained about the refusal of the domestic courts to order a supplementary expert examination in breach of Art. 6 § 1. • two expert reports were contradictory; a new expert opinion was requested (the third one) into the circumstances of her husband’s death. • The ECtHR: Lithuanian courts based their conclusions on two expert reports and four experts were summoned to courts. • They testified before both the first-instance and appellate courts. The Court does not find that the applicant was placed at a procedural disadvantage vis-à-vis the medical institutions or V.D.S.

Rinkūnienė v. Lithuania , inadmissible(No. 55779/08, 1 December2009): • The assessment of evidence and its probative value are primarily a matter for the domestic authorities: • The Court is not competent to deal with an application alleging that errors of fact or law have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of the rights of the Convention ( Erikson v. Italy (dec.), no. 37900/97, 26/10/99). • The Court cannot conclude that the Lithuanian courts restricted the applicant’s opportunities to prove her case or that they assessed the evidence before them arbitrarily. • Overall, even if the Court of Appeal’s silence as regards a third expert report could be regarded as a procedural flaw, this aspect alone had NOT reduced the effectiveness of the examination of the doctors’ responsibility...

Article 6/ Evidence: • Article 6 of the Convention does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law ( Jalloh v. Germany [GC], no. 54810/00, §§ 94-96, ECHR 2006-IX); • The Role of the ECtHR is to decide whether the proceedings as a whole, including the way in which the evidence was obtained, were fair (assessment of an overall fairness of the proceedings).

Equality of arms/adversarialproceedings : • Equality of arms – equal procedural ability to state the case; • Adversarial proceedings – to have an access and a possibility to comment at trial on the observations filed or evidence adduced by the other party; • Both requirements – constituent part of Art. 6 ( fair trial).

Fair proceedings/use of evidence : • In determining whether the proceedings as a whole were fair , the rights of the defence should be regarded; • also the interests of the public and the victims that crime is properly prosecuted (see Gäfgen v. Germany [GC], no. 22978/05, § 175, ECHR 2010) and, • The applicants should have the opportunity of challenging the authenticity of the evidence and of opposing its use ( Schenk, Khan cases).

Evidence requirement: • the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy; • where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker ( Khan , §§ 35 and 37, and Allan , § 43).