Criminal Law II

Introduction to Law

Dr. Eszter Kirs

Department of International Relations
Stages of the criminal procedure

When is a
judgment final?
Investigative
phase:

• Collecting Trial phase:

evidences
• Suspect • Trial waiver Trial judgment
• Pressing charges,
accused
• Pre-trial hearings Appeal stage and judg.
• Trial hearings

Review
(third instance)
Procedural rights of
suspects/accused (ECtHR)
- Equality of arms
Principle of equality of arms,
as one of the essential
features of the wider concept
of a fair trial:
each party must be afforded a
reasonable opportunity to
present his case under
conditions that do not place
him at a disadvantage vis-à- Öcalan v. Turkey [GC], § 140; Foucher v. France, § 34; Bulut v. Austria;
Faig Mammadov v. Azerbaijan, § 19
vis his opponent.
Procedural deficiency
the lack of equal standing of
the parties in the criminal
proceeding

the restriction of the right to

access to a lawyer by the
requirement of prior permission
of the prosecutor for each visit of
the lawyer at the accused
unjustified failure by the
prosecution to disclose all
‘material evidence’ to the
defence
refusal to allow witnesses to be
called or written defence
statements to be admitted on equal
terms with the prosecution

different position and rights of

the prosecution and the
accused with regard to the
right to be heard by the court
restriction of the right to
access to case files
Unfairness on the facts does not
need to be proven for the ECtHR
to find a violation of the principle of
equality of arms.
Procedural deficiency qualifies as
a violation of a fair trial.
Procedural rights of
suspects/accused
- Right to an adversarial trial
The right to an adversarial trial:
both the prosecution and defence
must be given the opportunity to
have knowledge of and comment
on the observations filed and the
evidence adduced by the other
party.
Not an absolute requirement.
Permissible for the prosecution to
withhold evidence only if this is
strictly necessary
to preserve the fundamental rights
of another individual,
to protect witnesses or
to safeguard an important public
interest, such as national security.
Any difficulties deriving from them
putting the accused in a
disadvantageous position must be
counterbalanced in order to
ensure a fair trial.
Rowe and Davis v. the United Kingdom [GC], § 60-66; Mirilashvili v. Russia, § 200;
Leas v. Estonia, § 81; Matanović v. Croatia, § 161
Procedural rights of
suspects/accused
- Freedom from self-incrimination Threat… testifies or is
Meaning the right to sanctioned for refusing
remain silent, not
applicable to evidence
whose existence is
independent of the will of Physical or
the accused & obtained psychological pressure
from the accused by the
use of compulsory power
(e.g. blood sample).
Subterfuge to gain
Prohibition of improper information
compulsion.
At the heart of the right to
a fair trial… Saunders v. the United Kingdom [GC] § 60-69; John Murray v. the United
Kingdom [GC], § 45; Ibrahim and Others v. the United Kingdom [GC], § 267
Procedural rights of
suspects/accused
- Right to information/interpretation
In case of foreigners: Full, detailed information concerning
• right to free assistance of an interpreter the charges and
if the accused cannot understand or
speak the language used in court the legal characterisation
• notification of such a right in a language
the applicant understands
• not be sufficient if the accused’s lawyer, … in the light of the accused’s right to prepare
but not the accused, knows the language his defence
used in court
… need not necessarily mention the evidence
… must actually be received by the accused
… autonomous meaning of the words
“charged” and “criminal charge” (objective
rather than the formal situation)

Mattoccia v. Italy, § 59; Penev v. Bulgaria, §§ 33, 42; K. v. France,

Commission decision Baytar v. Turkey, § 49
 Procedural rights of
suspects/accused
- Right of access to a lawyer
from the moment there is a
“criminal charge” within the
autonomous meaning of the
Convention
practical and effective
assistance: adequate time and Legal aid:
facilities, confidentiality
lack of sufficient means to pay
complexity of the lawyer’s for legal assistance
assistance
where the interests of justice
vulnerability relevant if so requires (e.g. detention,
restrictions severity of penalty, complexity of
knowing and intelligent waiver case)
Salduz v Turkey, § 54-55 Dayanan v Turkey, § 32; Ibrahim and Others v. the
United Kingdom [GC], § 272; Pishchalnikov v. Russia, § 77
Procedural rights of
suspects/accused
- Right to a reasoned judicial decision
demonstrating to the parties that they
have been heard, the essential
issues of the case have been
addressed
oblige judges to base their reasoning
on objective arguments
to usefully exercise any available
right of appeal
automatic or stereotypical
decisions problematic
Procedural rights of
suspects/accused
- Reasonable time

Art 6:
Charged acquitted, convicted (incl.
appeal)
Reasonable: time needed for proper administration of justice
Relevant circumstances: (1) complexity of the case, (2) attitude of
the applicant, (3) attitude of the authorities

Art 5 (3):
Reasonable, prolongation of PTD: detention!!!
Neumeister v. Austria, § 20; I.A. v. France, § 121; Assenov v.
Bulgaria
Enforcement of the sanction of imprisonment
- International standards on detention conditions:
equality, human dignity

➢UN Charter, 1945, Preamble

➢Universal Declaration of
Human Rights, 1948, Preamble,
Art 5
➢International Covenant on Civil
and Political Rights, 1966, Art 7,
10
➢EU Charter, 2000, Art 1, 4
➢European Convention on
human rights, 1950, Art 3

Detainees not excluded!

Physical conditions
Kalashnikov v Russia Modarca v Moldova
➢Pre-trial detention ➢9 months

➢5 years ➢Lack of natural light

➢14 cellmates in a cell for 8 ➢Limited access to running water

persons ➢Unbearable smell in cell due to
the toilet
➢Common bed
➢Lack of food of sufficient quantity
➢Lack of proper ventillation and quality
and hygenic conditions
➢Lack of clean linen
➢Skin disease

Degrading Inhumane
treatment treatment

https://www.rferl.org/a/Russian_Prisons_To_Be_Open_To_Muslim_Imams/2042042.html
Overcrowding,
physical conditions of detention
Ananyev and Others v Russia
(2012)
➢Separate bed to each detainee
➢Minimum 3 square meter ground
space per detainee
➢The total size of cell should allow
all detainees to move freely within
the cell
➢Additional considerations: length
of detention, hours per day spent
in open air, access to open air
programs or work, mental and
physical state of detainee

Varga and Others v Hungary

(2015)
 Search
Iwanczuk v Poland
➢Pre-trial detention
➢National elections
➢Lack of security risks
➢Instruction to strip naked
➢Presence of more guards
➢Refused to strip and body
search » was not allowed to
vote
Degrading
treatment
https://acestoohigh.com/2015/01/28/ca-dept-of-corrections-wants-to-strip-
search-children/
Van der Ven v The
Netherlands
➢Search on a weekly basis
➢Stripped naked
➢Institution of high security
➢Practice upheld for 3 years
➢Lack of justification
Inhumane and
degrading treatment
Solitary confinement
Ilascu and Others v Moldova and
Russia (Transnistria)
➢Suspected of terrorism (political
detention)
➢8 years
➢No access to the outside world
➢No access to lawyer or relatives
➢Lack of heating, ventillation
➢Deprivation of food as a sanction
➢Severe impact on health
torture (!)
Ramirez Sanchez v France
(„Carlos the Jakal”)
➢terrorism
➢8 years
➢Television, newspapers
➢Regular visits of lawyer, priest
and relatives
➢Good state of health
➢Negative: lack of regular judicial
review of solitary confinement
NO
Violation of ECHR
https://www.irishtimes.com/news/world/europe/carlos-the-jackal-convicted-of-
bombing-in-paris-in-1974-1.3027647
Medical treatment
Khudobin v Russia
➢Pre-trial detention
➢epilepsy, mental diseases, HIV
➢Medical treatment on one single
occasion
➢Lack of regular medical review
➢Lack of necessary medication
Inhumane
treatment
Keenan v UK
➢Enforcement of judgment
➢Prone to suicide
➢Additional 28 days and 7 days or
solitary confinement 9 days before
release
➢Lack of psychiatric assistance
➢Suicide
https://agenda.ge/en/news/2016/1806
Inhumane,
degrading
treatment
https://www.thedailybeast.com/after-his-suicide-watch-ended-jeffrey-epstein-
was-left-to-look-after-himself