Cje
Dr hab. Wojciech Jasiński
Department of Criminal Procedure
Faculty of Law, Administration and Economics University of Wrocław
Lecture
Criminal Procedure and Courts 3
Lecture
Criminal Procedure and Courts
Right to a fair trial
Lecture
Criminal Procedure and Courts
Right to a fair trial - 2020
Lecture
Criminal Procedure and Courts
Right to a fair trial
Article 6
Explicit rights:
right to public trial, right to
have a case heard in a reasonable
time, defense rights (Article 6 par. 3),
etc.
Lecture
Criminal Procedure and Courts
Right to a fair trial
In general the overall fairness of proceedings is assessed by the ECtHR.
However, in some situations a single violation of the law may result in violation of the right to a fair trial.
Lecture
Criminal Procedure and Courts
Right to a fair trial
Lecture
Criminal Procedure and Courts
Right to a fair trial
In making this assessment on the overall
fairness of the proceedings 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
that crime is properly prosecuted and,
Lecture
Criminal Procedure and Courts
Right to a fair trial
Article 6 par. 2
Presumption of innocence
Lecture
Criminal Procedure and Courts
Presumption of innocence
Article 6 § 2 safeguards the right to be “presumed
innocent until proved guilty according to law”.
Two aspects of that presumption:
1) Viewed as a procedural guarantee in the
context of a criminal trial itself, the presumption of
innocence imposes requirements in respect of,
inter alia:
premature expressions, by the trial court or by
other public officials, of a defendant’s guilt
pre-trial publicity
the burden of proof
legal presumptions of fact and law
Lecture
Criminal Procedure and Courts
Presumption of innocence
2) In keeping with the need to ensure that the right guaranteed by Article 6 § 2 is practical and effective, the presumption of innocence also has another aspect. Its general aim, in this second aspect, is to protect individuals who have been acquitted of a criminal charge, or in respect of whom criminal proceedings have been discontinued, from being treated by public officials and authorities as though they are in fact guilty
of the offence charged. In these cases, the presumption of
innocence has already operated, through the application at trial of the various requirements inherent in the procedural guarantee it affords, to prevent an unfair criminal conviction being imposed. Without protection to ensure respect for the acquittal or the discontinuation decision in any other proceedings, the fair-trial guarantees of Article 6 § 2 could risk
becoming theoretical and illusory. What is also at stake once
Lecture
Criminal Procedure and Courts
Presumption of innocence
Presumption of innocence after criminal case
concluded with no attribution of guilt
Lecture
Criminal Procedure and Courts
Presumption of innocence
Presumption of innocence after criminal case
concluded with no attribution of guilt
Lecture
Criminal Procedure and Courts
Presumption of innocence
Prejudicial statements
Lecture
Criminal Procedure and Courts
Presumption of innocence
Prejudicial statements
The presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of a fair trial that is required by paragraph 1. The presumption of innocence will be violated if a:
judicial decision or
statement by a public official
Lecture
Criminal Procedure and Courts
Presumption of innocence
Prejudicial statements
A distinction should be made between statements which reflect the opinion that the person concerned is guilty and statements which merely describe “a state of suspicion”. The former infringe the presumption of innocence, whereas the latter have been regarded as unobjectionable.
Lecture
Criminal Procedure and Courts
Presumption of innocence
Prejudicial statements
The Court has emphasises the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of a particular criminal offence.
Lecture
Criminal Procedure and Courts
Presumption of innocence
Prejudicial statements - examples
Court’s statement in decision prolonging detention that the suspect committed and offence which he was charged
Public statements of police officials; President of the Republic; the Prime Minister or the Minister of the Interior; Minister of Justice; President of the Parliament; prosecutor and other prosecution officials
Lecture
Criminal Procedure and Courts
Presumption of innocence
Prejudicial statements - examples
Examples:
- referring to a suspect „as one of the instigators of a murder”; describing a person as a “bribe-taker”
- Garlicki v. Poland
Lecture
Criminal Procedure and Courts
Presumption of innocence
Burden of proof
Right to be presumed innocent entails that the prosecution
bear the onus of proving the allegations against him or her
forms part of the general notion of a fair hearing under Article 6 § 1 of the Convention. The person has to also have a possibility of executing his or her defence rights.
Lecture
Criminal Procedure and Courts
Presumption of innocence
Burden of proof
The Court has held that the
in dubio pro reo
principle
(doubts should benefit the accused) is a
specific expression of the presumption of
innocence.
Lecture
Criminal Procedure and Courts
Presumption of innocence
Legal presumptions of facts and law
Lecture
Criminal Procedure and Courts
Presumption of innocence
Legal presumptions of facts and law
Examples of legitimate presumptions in criminal law:
- presumption of sanity while commiting an offence (the accused has to prove that he or she was insane) – not a disproportionate burden on the accused
- confiscation of the proceeds of crime – presumption that certain assets were obtained by criminal means
- presumption that the owner of the car is a driver in case of road offences that were vide-recorded
Lecture
Criminal Procedure and Courts
Presumption of innocence
Right not to incriminate oneself
The right to remain silent under police questioning and the privilege against self-incrimination are
generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia,
- in the protection of the accused against improper compulsion by the authorities,
Lecture
Criminal Procedure and Courts
Presumption of innocence
Right not to incriminate oneself
The right not to incriminate oneself is primarily concerned with
respecting the will of an accused person to remain silent and presupposes that the prosecution in a criminal case seek to prove their case without resort to evidence obtained through
methods of coercion or oppression in defiance of the will of
the accused.
It is important to recognise that the privilege against self-incrimination does not protect against the making of an incriminating statement per se but, as noted above, against
the obtaining of evidence by coercion or oppression. It is the
Lecture
Criminal Procedure and Courts
Presumption of innocence
Right not to incriminate oneself
The Court, through its case-law, has identified at least three kinds of situations which give rise to concerns as to improper compulsion in breach of Article 6:
1) where a suspect is obliged to testify under threat of
sanctions and either testifies in consequence or is sanctioned for refusing to testify (
2) where physical or psychological pressure, often in the
form of treatment which breaches Article 3 of the Convention, is applied to obtain real evidence or statements
3) where the authorities use subterfuge to elicit
Lecture
Criminal Procedure and Courts
Presumption of innocence
Right not to incriminate oneself
It is inherent in the privilege against self-incrimination, the right to silence that a person “charged with a criminal offence” for the purposes of Article 6 has the right to be notified of these rights. In the light of the nature of the privilege against
self-incrimination and the right to silence, the Court considers that
Lecture
Criminal Procedure and Courts
Presumption of innocence
Right not to incriminate oneself
Lecture
Criminal Procedure and Courts
Presumption of innocence
Right not to incriminate oneself
The requirement for car owners to identify the driver at the time of a suspected traffic offence is not incompatible with Article 6 of the Convention (O’Halloran and Francis v. the United Kingdom [GC]).
Obliging drivers to submit to a breathalyser or blood test is not contrary to the principle of presumption of innocence (Tirado Ortiz and Lozano Martin v. Spain (dec.)).
Lecture
Criminal Procedure and Courts
Presumption of innocence
Right not to incriminate oneself
Lecture
Criminal Procedure and Courts
Further reading:
Guide on Article 6 of the European Convention on Human Rights Right to a fair trial (criminal limb) – p. 40-42, 63-70,
