Professional Documents
Culture Documents
VOLUME XII/3
Human Rights in Criminal Proceedings
The Collected Courses of the Academy of European Law
Edited by Professor Philip Alston, Professor Gráinne de Búrca,
and Professor Bruno de Witte
This series brings together the collected courses of the
Academy of European Law in Florence. The Academy’s mission is to
produce scholarly analyses which are at the cutting edge of the two
fields in which it works: European Union law and human rights law.
A ‘general course’ is given each year in each field, by a
distinguished scholar and/or practitioner, who either examines the
field as a whole through a particular thematic, conceptual or
philosophical lens, or who looks at a particular theme in the context
of the overall body of law in the field. The Academy also publishes
each year a volume of collected essays with a specific theme in each
of the two fields.
Human Rights in Criminal
Proceedings
STEFAN TRECHSEL
1
AC
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Trechsel, Stefan.
Human rights in criminal proceedings / Stefan Trechsel.
p. cm. — (Collected courses of the Academy of European Law)
Includes bibliographical references and index.
ISBN 0-19-829936-2 (hardcover : alk. paper) 1. Due process of law—European Union
countries. 2. Fair trial—European Union countries. 3. Criminal procedure—European
Union countries. I. Title. II. Series.
KJE9485.T74 2005
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2004030368
Typeset by Newgen Imaging Systems (P) Ltd., Chennai, India
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To the memory of the European Commission of Human Rights
Acknowledgements
This book has taken several years to write, years during which quite a number of
people have assisted me in various ways, by collecting material, by assisting in
technical matters, by discussing issues, by correcting my language, and not the
least by their encouragement. First of all, my gratitude goes to Philip Alston for
his irresistible friendly pressure and encouragement. Then I would like to thank
the members of my staff at Zurich University Law School: Rechtsanwältin
Dr iur. Regula Schlauri, lic. iur. Kerstin Ziltner, lic. iur. Bruno Stoeckli, lic. iur.
Juerg Keim, Fürsprecher Sararard Arquint, and Jacqueline Bollmann. Tahnissa
Means at SLU was a great help in correcting the text. For their patience and
support I have to thank OUP, and in particular Dr Gwen Booth. The book was
finalized at the Hotel Monteconero near Ancona, and I have to thank Patrizia,
Sabrina, and Sara for their assistance and for letting me monopolize the hotel’s
Internet access. And the most valuable help by far was that of Sarah J. Summers,
LL B, who has not only done the linguistic corrections of which I needed much
more than I, in my vanity, had anticipated but who also contributed her
knowledge of the Scottish, and the common law, who was a critical observer,
and a devoted, even enthusiastic, help. Finally, for encouragement and patience,
I want to thank my wife Franca whom, for many months, I have reduced to a
functional widow, but who nevertheless gave her unwavering and continual
support to this project. Thank you also to all those I have not mentioned!
S. Trechsel
Summary Table of Contents
Acknowledgements vii
Table of Cases xxxv
List of Abbreviations cvii
Part One—Introduction
Part One—Introduction
4. Necessity 434
C. Detention after Conviction: Article 5 x 1(a) 436
1. General Characteristics 436
2. Conviction 436
(a) Definition 436
(b) Guilt 437
(c) Final Judgment 437
(d) Material Justification 437
(e) Compliance with Article 6 439
3. Competent Court 440
4. The Link Between Conviction and Detention: ‘After’ 440
5. The Duration of Imprisonment 443
D. Detention for Non-compliance with a Court Order
or to Secure the Fulfilment of a Legal Obligation:
Article 5 x 1(b) 443
1. Detention for ‘Non-compliance with the
Lawful Order of a Court’ 443
2. Detention ‘in Order to Secure the Fulfilment
of any Obligation Prescribed by Law’ 444
E. Detention of a Minor: Article 5 x 1(d) 445
1. ‘Minor’ 445
2. The Educational Purpose 445
3. Detention of a Minor on Remand 446
4. The Implementation of Deprivation
of Liberty of a Minor 446
F. Detention for the Prevention of the Spreading of
Contagious Diseases and of the Socially Maladjusted:
Article 5 x 1(e) 447
1. Detention for the Prevention of the Spreading
of Infectious Diseases 447
2. Persons of Unsound Mind 448
(a) General Observations 448
(b) The Three Prerequisites 448
(c) The Evidence for Mental Illness 448
(d) The Element of Danger 449
(e) The Element of Continuation 450
3. The Place of Detention 450
4. Addicts 450
5. Vagrants 451
G. Detention to Prevent an Unauthorized Entry or
with a View to Deportation or Extradition 451
1. Detention to Prevent Unauthorized Entry 451
Contents xxix
Index 582
Tables of Cases
Herz v. Germany, no. 44672/98, 12 June 2003 ....................... 467, 468, 470,
491, 492
Higgins and others v. France, 19 Feb. 1998, Reports 1998-I, 44,
(1999) 27 EHRR 703; (1998)
36 Rev. trim. dr. h. 835 .................................................. 78, 106, 107, 109
Hilden v. Finland (dec.), no. 32523/96, 14 Sept. 1999, unreported .......... 220
Hill v. United Kingdom, no. 19365/02, 27 Apr. 2004 .............................. 474
Hiro Balani v. Spain, 9 Dec. 1994, Series A no. 303-B,
(1995) 19 EHRR 566 ............................................................ 106, 107, 109
Hirst v. United Kingdom, no. 40787/98, 24 July 2001 ............ 473, 489, 490
Holm v. Sweden, 25 Nov. 1993, Series A no. 279-A,
(1994) 18 EHRR 79 ................................................................................. 78
Hood v. United Kingdom, no. 27267/95, ECHR 1999-I,
465, (2000) 29 EHRR 365; 1990 EuGRZ 117; (1999)
2 ÖIM-Newsletter 52 ..................................................................... 500, 508
Hozee v. Netherlands, 22 May 1998,
Reports 1998-III, 1091.................................................... 18, 139, 144, 148
Hristov v. Bulgaria, no. 35436/97, 31 July 2003........................................ 477
Huber v. Switzerland, 23 Oct. 1990, Series A no. 188, 1990
EuGRZ 502.............................................................48, 323, 473, 509, 510
Hubner v. Austria (dec.), no. 34311/96, 31 Aug. 1999,
unreported .............................................................................. 363, 366, 367
Hulki Günes v. Turkey, no. 28490/95, 19 June 2003,
Reports 2003-VII, 187 ................................. 296, 297, 305, 308, 310, 315
Humen v. Poland [GC], no. 26614/95, 15 Oct. 1999, (2001)
31 EHRR 53 ........................................................................................... 142
Hussain v. United Kingdom, 21 Feb. 1996, Reports 1996-I, 252, (1996)
22 EHRR 1; (1996) 3 ÖIM-Newsletter 81................... 376, 441, 474, 481
Hutchison Reid v. United Kingdom, no. 50272/99,
20 Feb. 2003, ECHR 2003-IV, 1, (2003)
37 EHRR 9 .................................................. 413, 479, 488, 489, 493, 494
Huvig v. France, 24 Apr. 1990, Series A no. 176-B, (1990)
12 EHRR 528 ...............................46, 410, 441, 538, 539, 542, 549, 550
NC v. Italy (No. 1), no. 24952/94, 11 Jan. 2001..................... 414, 424, 426,
435, 487, 499
Nakor v. Former Yugoslav Republic of Macedonia (dec.), no. 68286/01, 24 Oct.
2002, unreported ..................................................................................... 374
Navarra v. France, 23 Nov. 1993, Series A no. 273-B, (1994)
17 EHRR 594 ........................................................................ 489, 494, 495
Nemeth v. Hungary, no. 60037/00, 13 Jan. 2004 ............................. 142, 143
Neumeister v. Austria, 27 June 1968, Series A no. 8, (1979–80)
1 EHRR 91; 1975 EuGRZ 393 .............................. 15, 32, 33, 48, 95, 97,
122, 138, 140, 144, 145, 233, 249, 256, 461, 478, 482,
483, 494, 516, 520, 525, 530, 532
Nideröst-Huber v. Switzerland, 18 Feb. 1997,
Reports 1997-I, 101, (1998) 25 EHRR 709; (1997)
2 ÖIM-Newsletter 46 ...................................................... 90, 91, 92, 97, 98
Niedbała v. Poland, no. 27915/95, 4 July 2000,
(2001) 33 EHRR 48 ...................479, 483, 485, 489, 505, 510, 511, 545
Nielsen v. Denmark, 28 Nov. 1988, Series A no. 144, (1989) 11
EHRR 175...................................................... 86, 163, 206, 368, 415, 458
lx Tables of Cases
PB v. France, no. 38781/97, 1 Aug. 2000 ........................ 145, 522, 528, 531
PG and JH v. United Kingdom, no. 44787/98,
ECHR 2001-IX, 195...................................35, 90, 92, 93, 539, 545, 546,
547, 549, 550
PK v. Finland (dec.), no. 37442/97, 9 July 2003 ....................................... 103
PS v. Germany, no. 33900/96, 20 Dec. 2001, (2003) 36
EHRR 61; 2002 EuGRZ 37 .................................................. 297, 305, 321
Pabla Ky v. Finland, no. 47221/99, 22 June 2004 ....................................... 53
Padin Gestoso v. Spain (dec.), no. 39519/98,
ECHR 1999-II, 347 ................................................................................ 119
Padovani v. Italy, 26 Feb. 1993, Series A no. 257-B, (1993) 3
ÖIM-Newsletter 20 .............................................................................77, 80
Pakelli v. Germany, 25 Apr. 1983, Series A no. 64,
(1984) 6 EHRR 1; 1983 EuGRZ 344;
(1984) 5/2-4 HRLJ 242 .............................. 244, 247, 251, 257, 259, 269,
271, 272, 275, 276, 277
Panek v. Poland, no. 38663/97, 8 Jan. 2004 ........... 140, 142, 145, 146, 147
Pantano v. Italy, no. 60851/00, 6 Nov. 2003 ............................................. 531
Pantea v. Romania, no. 33343/96, 3 June 2003, ECHR
2003-VI, 317 ..............................139, 140, 425, 426, 433, 483, 491, 493,
494, 509, 510, 513, 514
Papageorgiou v. Greece, 22 Oct. 1997, Reports 1997-VI, 2277,
(2004) 38 EHRR 30 ...................................................................... 114, 201
Pascazi v. Italy, no. 42287/98, 4 July 2002................................................. 146
Pascolini v. Italy, no. 45019/98, 26 June 2003........................................... 102
Pauger v. Austria, 28 May 1997, Reports 1997-III, 881, (2002)
25 EHRR 105; (1997) 3 ÖIM-Newsletter 95................................ 125, 126
Pauwels v. Belgium, 26 May 1988, Series A no. 135, (1989) 11
EHRR 238...................................................................................... 508, 509
lxii Tables of Cases
Y v. Norway, no. 56568/00, ECHR 2003-II, 161 ..................... 182, 183, 191
Yağcı and Sargın v. Turkey, 8 June 1995, Series A
no. 319-A, (1995) 20 EHRR 505; (1995) 16/7-9 HRLJ
286; (1995) 4 ÖIM-Newsletter 154 ............. 140, 143, 146, 523, 527, 530
Yagtzilar and others v. Greece, no. 41727/98, ECHR
2001-XII, 19............................................................................................ 106
Yankov v. Bulgaria, no. 39084/97, 11 Dec. 2003...................... 137, 477, 531
Young, James and Webster v. United Kingdom, 13 Aug. 1981,
Series A no. 44, (1982) 4 EHRR 38; 1981 EuGRZ 559 ........................ 125
Yvon v. France, 44962/98, 24 Apr. 2003...................................................... 97
Duran and Ugarte v. Peru, Series C no. 68 (16 Aug. 2000)....................... 118
Loayza Tamayo v. Peru, Series C no. 22 (17 Sept. 1997)........................... 393
Suaréz Rosero v. Ecuador, Series C no. 35 (12 Nov. 1997)........................ 285
MISCELLANEOUS
dec. decision
DePaul L. Rev. DePaul Law Review
Digest Digest of Strasbourg Case-Law relating to the
European Convention on Human Rights
DR Decisions and Reports of the European
Commission of Human Rights
Duke J. Comp. & Int’l L. Duke Journal of Comparative and International
Law
UK United Kingdom
UN United Nations
US United States of America
Vol. volume
In tutte le parti del mondo, là dove si comincia col negare le libertà fondamentali
dell’Uomo, e l’uguaglianza fra gli uomini, si va verso il sistema concentrazionario,
ed è questa una strada su cui è difficile fermarsi.
Primo Levi1
I. THE SUBJECT
This book deals with, as its title promises, human rights in criminal proceedings,
that is to say, the various ways in which the regional and universal laws of
fundamental rights and freedoms restrict the power of Contracting States, by
requiring them to establish the prerequisites for the application of retributive
sanctions against persons suspected of having acted against the law.
A. Definitions
The subject obviously comprises and confronts two distinct elements, and it
might be useful to begin by defining what is meant by those terms. The purpose
of these definitions is to serve the pragmatic goal of explaining what I am dealing
with; they are thus not concerned with the abstract scientific ambition of saying,
once and for all, what ‘human rights’ and ‘criminal proceedings’ are (i.e. until the
next author publishes the next ‘once and for all’ definition). Anyhow, it is
difficult in this area to keep ontological and normative aspects clearly separated.
1. ‘Human Rights’
The term ‘human rights’ is used here in a positivistic sense to denote the rights
guaranteed in international treaties, more precisely, the International Covenant
on Civil and Political Rights (ICCPR) with its aspiration to universal application,
1 Se questo è un uomo, La tregua (1989) 338. (‘[I]n every part of the world, wherever you begin by
denying the fundamentals of liberties of mankind, and equality among people, you move towards
the concentration camp system, and it is a road on which it is difficult to halt’; trans. from the
English edition, Levi (1987) 390–1.)
4 Stefan Trechsel
the European Convention for the Protection of Human Rights and Funda-
mental Freedoms, mostly referred to as the European Convention on Human
Rights (ECHR), and the American Convention on Human Rights (ACHR),
also known as ‘the Pact of San José, Costa Rica’.
This is admittedly a very narrow view. There is a plethora of other interna-
tional texts dealing with human rights.2 They deal with single problems such as
discrimination or with a specific group of individuals who are thought of as
particularly vulnerable, such as children or persons deprived of their liberty. The
law of war as codified, in particular, in the Geneva Conventions protects human
rights, at least in Article 3, which is common to all four treaties.
Apart from the treaties, there are countless declarations, resolutions, and
recommendations, beginning with the Universal Declaration on Human Rights
(UDHR) of 10 December 1948, a date commemorated worldwide as Human
Rights Day. Moreover there are many documents prepared by international and
national non-governmental organizations, many of which, such as Amnesty
International or the International Helsinki Federation, enjoy high prestige. Even
associations dedicated to certain branches of the law, such as the International
Association for Penal Law, also known as Association Internationale de Droit
Pénal (AIDP), deal with human rights. The same is true for professional organ-
izations. A publication entitled Essential Texts on Human Rights for the Police:
A Compilation of International Instruments3 lists no fewer than thirty-nine texts,
ranging from the UDHR to the Guidelines on the Role of Prosecutors, Adopted
by the Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, Havana, 27 August–7 September 1990.
All of these texts certainly have their merits; however, I want to stress that this
is a book about the law. The title could be more precisely stated as Human-Rights
Law Relevant to Criminal Proceedings, but this would be bulky and inelegant.
I am gladly going to resist the temptation to embark on (another) definition of
‘law’. What I mean is this: I conceive law mainly as a living set of norms which
develops through its application, and more particularly through its application
by the courts. ‘Human rights’ in the context of this book refers primarily to the
rapidly growing body of case-law on a number of crucial Articles of the three
instruments which are examined here. This is also the explanation for the fact
that the African Charter has not been taken into account.
It is common knowledge that the mere existence of a normative text does not
necessarily have a considerable impact on what actually happens. Most com-
munist countries had a wonderful record as far as their ratification of human-
rights instruments were concerned, while the reality bore no resemblance to the
theoretical explanations. This book concerns human rights which are actually
applied under the control of judicial or quasi-judicial bodies. This is also linked
2. Criminal Proceedings
The term ‘criminal proceedings’ is understood here as encompassing all the
activities of state agencies, from the police to the constitutional or supreme courts,
which take as a point of departure the suspicion that an offence has been com-
mitted. These activities proceed through various stages, i.e. inquiry, investigation,
charge, indictment, judgment, and appeal. The essence of criminal proceedings is
rather well defined, although there is great variety in the manner and means of its
implementation, involving the organization of the authorities and the distribu-
tion of tasks between different branches, the organization of the trial and the
various cumulative or alternative possibilities of appeal. It is often stated that
there are two models of criminal procedure, an accusatorial one, associated with
the Anglo-Saxon common law, which features two distinct sides and a judge as a
neutral arbiter, and the continental system shaped along an inquisitorial model,
where the judge has a more active, somewhat paternalistic, role to play. The
current development of criminal-procedure law goes rather in the direction of a
certain convergence, in which the principle of adversariality has a dominant
role to play. The newly instituted International Criminal Court (ICC) is the
result of efforts to reach a compromise which is acceptable throughout the whole
world.
3. Limitations, Exclusions
It is not possible to define a subject simply by giving a positive description; it is
also essential to state what is not covered. Of course, the omissions are prac-
tically unlimited. I shall only mention a few points, although I am quite aware
of the fact that there are many others which could be mentioned. It must be
admitted quite frankly that there are aspects and issues which could have been
included but which are missing simply because of practical reasons, mainly
limitations in time, and the need to stop at some point. Perfectionism will never
be satisfied.
the exhaustion of domestic remedies which differs from one state to the next,
and for a discussion of the status of human-rights law on the domestic level.
I have therefore decided to exclude this field—the reader is referred to the
abundant literature which already exists.
note, I would not pretend that each one of my publications really deals with a
very important subject. However, I have no hesitation in reaffirming my belief
in the importance of the subject addressed in this book—I do not think that this
importance can be doubted.
There is, first of all, a quantitative argument. A very large part of the inter-
national case-law on human rights is related to the administration of criminal
justice. Leaving aside, as far as the Strasbourg case-law is concerned, the issue of
the length of civil proceedings, it is the most important subject. The criminal-
justice system in every country in the world is under stress, in many cases insti-
tutions are overburdened with work. One could hardly say that this is a remote
or irrelevant subject.
The importance of human rights in criminal proceedings hardly needs any
comment or explanation. Criminal proceedings are an area where vital interests
of society and of the individual suspect collide. An individual’s reputation,
financial position, personal liberty, even life—not only in those countries where
capital punishment still exists, but also where life-long prison sentences are
imposed—is at stake. Society, on the other hand, has a considerable interest in
order, peaceful coexistence, security, physical integrity, and the safety of potential
victims. The situation may be complicated by the victim claiming a right to
participate in the proceedings.
Much depends, when one approaches the problem of balancing these inter-
ests, on the image one has in mind as a point of departure. It could, for example,
be that of hardened criminals, members of a criminal organization, who will
attempt every trick they can think of to avoid conviction, including the killing of
witnesses. Or it could be a man walking home at night from a bar who steps near
a body lying in the street; he touches it and feels blood; he realizes that he has
stepped in a pool of what might be blood; in panic he runs home, but is seen by a
passer-by and identified, which leads to his being suspected of murder. The
balancing must lead to acceptable results for both eventualities.
The two sides to the conflict, the individual and society, are obviously
equipped with unequal power. Not only is the accused opposed by a well-
organized and equipped adversary, he or she is also faced with the representatives
of a strong moral superiority. Every accused person is presumed innocent. This is
what the human-rights law says. Generally, however, the police, the prosecutor,
and—much more importantly and dangerously—the media, and consequently
‘the people’, hold the suspect guilty. The crime calls for vengeance, even though
enlightened and well-intended persons will deny this and justify the operation of
the criminal law with the aim of reforming the criminal.
The state’s efforts to employ efficient crime-control measures, and to limit the
financial (and temporal) costs of criminal proceedings, are perfectly legitimate.
The fear of crime is at least understandable. In the face of these realities, human
rights must work their way against the current, upstream. Although it ought to
be the other way round, in practice, when we speak with law-enforcement
8 Stefan Trechsel
officers and ‘ordinary people’, we have to justify our commitment to the rights of
the accused. We shall fail, if we do so with an excess of enthusiasm, forgetting the
pain of the victim and the apprehension of the public. We will also fail if we are
not consistent.
For this reason it is particularly important that the place of human rights in
criminal proceedings be well defined, and consistently, pragmatically, and
moderately applied. To the extent that this endeavour succeeds, a certain con-
vergence of interests can be said to appear. In a democratic state based on the rule
of law the administration of criminal justice is not just oriented towards
achieving as many convictions as possible and imposing severe sentences. It also
has the responsibility of ensuring that justice be done. I am convinced that
procedural justice is at least of the same importance as outcome-related justice.6
At present there is another argument which enhances the importance of the
subject of human rights in criminal proceedings, the so-called ‘war on terrorism’.
It cannot be denied that the present times are characterized by a recurrence of
violence, a wave which is clearly much bigger than that witnessed in Europe,
particularly in Germany and Italy, in the 1970s (‘anni di piomo’: lead years)
which originated in the actions of the Red Army Faction (‘Rote Armee Fraktion’
(RAF)) and the Red Brigades (brigate rosse). There is a tendency to overreact to
attacks like that on the World Trade Center in New York. The President of the
United States has provided an unfortunate example not only by waging war on
Iraq but also by locking up hundreds of men in Guantanamo and openly
denying them even the most elementary human rights. Torture, inhuman, and
degrading treatment were used by a state which used to boast leadership in the
areas of democracy, the rule of law, and human rights.
In the face of such a devastating experience it is important to assert not only
the moral superiority of human rights, but also their functional aspect. One
cannot expect respect from persons and groups of persons to whom one denies
human rights. In the long run, one cannot dominate nations, let alone religious
groups, by sheer force, even with the assistance of sophisticated technology.
Of course, these considerations go far beyond criminal proceedings. Yet, these
proceedings are an area in which, as I said, the rights of the individual and the
interests of the state are in direct contact. It is here that the state must dem-
onstrate its allegiance to higher values, and its readiness to use power with self-
restraint. This book is about the details of such restrictions.
There are many different ways to approach our subject. It may therefore be
justified and improve the understanding of the book if the author indicates his
6 Trechsel (1997).
About this Book 9
own perspectives which cannot be entirely separated from his background. This
does not mean that the book is written from a strictly personal viewpoint. It
does aspire to present solutions which are objectively correct or at least
defendable. Yet, it would be naive to assume that such an unfettered objectivity
can be fully achieved. In order not to let these considerations appear too per-
sonal, I shall refer to the author in the third person.
(the negative decisions being final), of establishing the facts, sometimes in lengthy
and complicated investigations, particularly in interstate cases such as Ireland v.
United Kingdom or Cyprus v. Turkey, of drafting a report which reads like a
judgment but which will never be the final decision, and of appearing before the
Court in the function of amicus curiae, falls to be regarded as a quasi-judicial
organ. As a consequence, his attitude lies between the two approaches described.
The answers proposed here are intended as practicable solutions which strike
a fair balance between the interests of the individual and those of society. To
the reader who tends towards human-rights activism this attitude will bring
disappointment—the author does not always argue for a maximum of rights for
the defence. But ‘government lawyers’ will, it is hoped, also be disappointed,
because the author believes in reform and places strong emphasis on procedural
justice, whereas the value of safety, to which governments tend to adhere and
which is also cherished by the public at large, tends to favour outcome-related
justice and the effectiveness of crime control.