WEEK 1 - PART A

LEGALITY PRINCIPLE
Why legality principle?
1. Foreseeability of criminal liability à principle of fairness
2. Influence in behavior à instrumental function

Subprinciples
1. Lex praevia
• Prohibition of retroactive effect establishing/ aggravating punishment
• Exception
o Lex mitior-clause: if the law is changed before the judgment, the
most lenient law is to be applied
§ Cancellation/restriction of criminal provision
§ Mitigation of the punishment (15 to 10 years)
§ New grounds of justification/excuses

2. Lex certa
• Prohibition of vague laws à statutes have to be precise
• Balance between too precise and too general

3. Lex stricta
• Prohibition of analogy
• Analogy ≠ acceptable interpretation à former is prohibited, latter is
accepted
o Grammatical interpretation, legislative history, teleological
interpretation, etc.
• Lenity principle: when a statute is ambiguous, it should be interpreted
strictly against the government
o Not applied in the Netherlands

4. Lex scripta
• Prohibition of customary law
• Courts should base criminal liability only on written statutes

JUSTIFICATION OF PUNISHMENT
Characteristics of punishment – Hart’s definition
1. Unpleasant consequences
2. Infliction is intentional, not accidental
3. Response of breach of the law
4. Punished person has broken the law voluntarily
5. Generally, the state is the one who punishes
 THEORIES OF PUNISHMENT
Retributivism - Kant
Punishment is deserved
Deontological à what is right and what
is wrong?
Back-warded looking à action of the
offender that was already committed
Punishment is good à if someone
commits a crime, he has to be punished
Utilitarianism - Bentham
Punishment is useful
Consequentialist à punishment is used
to prevent crimes
Forwarded-looking à related with the
predicting of the future and how helpful
it is
Punishment is evil à the offender will
not be happy with such punishment

RETRIBUTIVISM
Positive retributivism
• The guilty must be punished to the extent of their deserts
Negative retributivism
• The guilty may be punished to the extent of their desires
Why should one be punished?
• Purifying
• Restores status quo ante
• Restores the balance between benefits and burdens
• Satisfies feelings of vengeance
• Expresses moral disapproval
Retributivism and proportionality
• Punishment should be proportional to the severity of the crime
• Deserved punishment = responsibility x the amount of harm
UTILITARIANISM
Evil v good
• Crime leads to unhappiness à evil
• BUT, if punishing people for killing will cause less people killing, more
happiness exists in society
Means of crime prevention: why should one be punished?
• Individual/personal deterrence
• General deterrence
• Moral influence
• Rehabilitation
• Incapacitation
Utilitarianism and proportionality
• Does not care about proportionality, but on the effect punishment will
have in society
• In practice, punishment is usually proportional

WEEK 1 - PART B

TYPES OF CRIMINAL PROCEEDINGS

Inquisitorial Accusatorial/adversarial
Used in civil law Used in common law
Judge Jury
Substantive truth finding by the state Formal truth finding by the parties
 Vertical relation between state and
defendant
Active and intervening judge
Written case file
Prosecutor sitting almost next to the
judge
Started in France
Horizontal relation between the parties
Passive judge à it is in hand of the
parties
Oral presentation of evidence and
written submissions
Defense and prosecutor are in the same
level in front of the police
Started in England

OZTURK V GERMANY
• Question
o Is Art 6 ECHR applicable?
• Definitions
o Charge: official notification given to an individual by the competent authority
of an allegation that he has committed a criminal offence
• Rule – Engels test
o Criteria to determine a criminal offence
i. Does it constitute an offence under national law?
ii. Nature of the offence
a) Does it apply to everyone?
b) Does it have a punitive purpose?
c) Do other countries consider such action as a criminal offence?
iii. Nature and degree of severity of the sanction
NB: check the criteria in this order, and if one is fulfilled, there is no need to
check the rest

VENDITTELLI V ITALY
• Question
o Is the right to be tried under a reasonable time violated under Art 6(1) ECHR?
• Rule
o Criteria to determine reasonable time – length of proceedings
i. Complexity of the case
ii. What was at stake for the applicant
iii. Conduct of the applicant
iv. Conduct of the state
WEEK 2 - PART A

CLASSIFICATION OF OFFENCES
Intentional Negligent
NB: Result qualified offences
1. Whoever intentionally physically maltreats or harms the health of another person
shall be punished with imprisonment for no more than 4 years

2. If the maltreatment or the harming results in a severe injury, the perpetrator shall
be punished with no more than 6 years

3. If the maltreatment or the harming results in the death of the victim, the
perpetrator shall be punished with no more than 8 years
• Questions about result-qualified offences need to be recognized in the exam,
but it is always related to CAUSATION à they expect you to answer based on
causation theory
Result Conduct
Concrete endangerment Abstract endangerment
Commission Omisssion

CAUSATION
Two requirements in order to prove causation
Factual causation
• But for test à if it wasn’t for X, Y wouldn’t have happened
Legal causation
• Insubstantial contribution à not attributable to the original perpetrator
o The defendant’s contribution to the result is insubstantial in comparison to the
intervening cause
o X hits Y. the next day he is attacked to death by a gang. X would not be liable
• Responsive intervening cause à attributable to the original perpetrator
o When the intervening cause occurred in response to the defendant’s prior
wrongful conduct
o X hits Y and has to go to the hospital, where he did not survive. X is criminally
liable
• Coincidental intervening cause à not attributable to the original perpetrator
o When the intervening cause has not occurred in response to the defendant’s
prior wrongful act
o X hits Y and has to go to the hospital. During his medical treatment, there is a
terrorist attack and dies as a cause of it. X would not be criminally liable
• Naturally occurring intervening cause à attributable to the original perpetrator
o Natural intervening cause is foreseeable
o X hits Y on the beach. X leaves Y unconscious, the ocean comes, and Y drowns.
X is criminally liable
• Culpability perpetrator à attributable to the original perpetrator
o High culpability of the original perpetrator does not make it unreasonable to
attribute the result to the defendant’s act
o X shoots Y because he wants to kill him. Y does not die and goes to the hospital,
where he dies. X is criminally liable
• Culpable human intervention à not attributable to the original perpetrator
 o The intervening cause is a highly culpable action by a third person, it usually is
unreasonable to attribute the result to the defendant’s act
o X hits Y and gets a small injury, so he needs to be treated in the hospital for
surgery. During the medical intervention, the doctor makes a mistake. The
doctor is more guilty than X
• Unforeseeable conduct of victim à not attributable to the original perpetrator
o Conduct of the victim breaks causal chain if it is foreseeable
o X tries to steal Y’s house, so Y jumps off the window and dies. X is not criminally
liable
• Predispositions of the victim
o Usually do not break the causal chain
o The defendant has to take its victim as he finds it

WEEK 2 - PART B

CRIMINAL INVESTIGATION
• Initial inquiry by the government to establish
1. The facts and circumstances of the suspected crime
2. Identify those involved
3. Preserve any evidence related to the crime
• Objective: find the truth à not an absolute goal
• Investigative measures
o Interrogation
o DNA testing
o Fingerprints
o Physical evidence from crime scene

BROGAN AND OTHERS V THE UK

• Question
o Does the UK legislation on detentions period breach the promptness
requirement under Art 5(3) ECHR?
• Rule
o Since Brogan, any initial (pre-trial) detention period over 4 days is NOT
considered to qualify under “promptly”

LETELLIER V FRANCE
• Question
o Was the reasonable time frame of pre-trial detention violated under Art 5(3)
ECHR?
• Rule
o Criteria for reasonable time – length of detention
i. Risk of pressure being brought on the witness
ii. Danger of absconding
iii. Inadequacy of court supervision
iv. Preservation of public order
NB: one or more should be fulfilled in order to make a reasonable extension
of detention time
KHAN V THE UK
• Question
o Was there a violation of Art 8 ECHR?
• Rule
o Violation of Art 8 does not necessarily amount to a violation of Art 6 ECHR à
for this, you look at proceedings as a whole e.g. whether the applicant was
allowed to challenge the authenticity of the recordings, was there other
evidence
o Criteria – is the interference justified? *
i. Prescribed by law
a) Basis in domestic law
b) Accessible
c) Foreseeable
ii. Pursues a legitimate aim
iii. Necessary in a democratic society
a) Pressing social need
b) Margin of appreciation
c) Proportionality

NIEMETZ V GERMANY
• Question
o Was there a violation of Art 8 ECHR?
• Rule
o * Use of the same criteria as Khan v the UK
o The term “home” also includes work and business in some cases

WEEK 3 - PART A

INTENTION
• Germany: intention is not in the legal elements of the offence, but still has to be proven
• United States: there are 3 forms of intention
o Purposely
o Knowingly
o Recklessly
• Germany and the Netherlands: also 3 forms of intention, different names:
Direct intent: purposely
• Perpetrator acts because he wants that result and believes that his
action might have this result
• Knowing + wanting
• Test of failure: would this act have been a failure if the result had not
happened? If yes, direct intent
• A kills B, her husband, because she wants to profit from his life
insurance à even though her main goal was not to kill her husband, it
is absolutely necessary to achieve her goal
 Indirect intent: knowingly
• Perpetrator acts while being virtually certain that the result will
happen
• Knowing, not wanting necessarily
• When is indirect intent? 90% sure that the damage will be present
Conditional intent: recklessly
• Perpetrator acts whilst consciously accepting a (considerable) chance
that the result will happen
o In Dutch law, a considerable chance is required
o In German law, only a chance is required
• A failed her exam and blames her teacher, so she sends a poisoned
piece of cake with a note for her. The teacher eats the cake and dies
o Direct intent? No, because failure test is not fulfilled
o Indirect intent? No, because she was not 90% sure or more that
the teacher was going to die
o Conditional intent: Yes à there was a risk
• Conscious acceptance of causing the result – components
1. Chance: objective component
2. Conscious: cognitive component
3. Acceptance: volitional component

PRINCIPLE OF CORRESPONDENCE
• Intent and actus reus should correspond each other to a certain extent
• A wants to kill B with a poisoned cake, but on the way to leave it, A runs over a
pedestrian which resulted to be B
o In this case, there is no intent
• Mention principle of correspondence when there is such problem in the exam

INSANITY AND INTOXICATION

Can insane or intoxicated people still act intentionally? Generally, yes
Insanity
• If a person is insane, they might have different believes and do different
things than an average person
• Killing people is not a normal behavior à intention can be proven when
the suspect foresees and intends to commit the crime
• Test
o Was the defendant suffering from a relevant mental disorder
when committing the offense?
o Was the mental disorder the legal cause of the offense?
§ Psychological factor: state of mind
§ Legal factor: prior fault
Intoxication
• Some people drink before committing the crimes to get the courage
• Intention can still be proven as crimes can be foreseen

NEGLIGENCE
• Wife shoots her husband on a trip because she thought he was a bear
o No intent à she was not convicted
 • There are 2 stages of negligence
Objective stage
• Did the defendant’s conduct grossly deviate from the conduct of a
reasonable person?
Subjective stage
• Could the defendant have acted like a reasonable person?
• Exceptions: physical or mental disabilities, mental disease, chronic
physical disabilities, young or old age, lack of experience or education
PRIOR FAULT
• Perpetrator is blamed based on a prior decision that took him into such position of
committing a crime
• Prior fault is always related to the subjective stage à could the defendant have acted
like a reasonable person?
DUTCH EXCUSE: ABSENCE OF ALL CULPABILITY
• Stage 1: legal elements
o Crimes: intent or negligence as elements of the offence
o Misdemeanors: mens rea does not have to be proven à speeding
• Stage 2: unlawfulness
o Legal grounds for justification à self-defense, necessity, state order
• Stage 3: blameworthiness
o Legal grounds for excuses à duress, insanity, excessive self-defense, and:
§ Absence of all culpability: it applies to situations in which the suspect is
not to blame
• In the Netherlands, it is possible to have a defense for ‘raping’ someone that is
underage, and you did not know

WEEK 3 - PART B

POLICE INTERROGATIONS: FINDING THE TRUTH V DEFENDANT’S

RIGHTS
• A decision to prosecute could be made before or after the investigation is complete
American Approach French (continental) approach
Bill of rights: 10 amendments of US
constitution
- Amendment V: nor shall be compelled Right to not incriminate oneself
in any criminal case to be a witness
against himself
Not give evidence against oneself, as the A person taken into police custody may be
government has many resources to figure interrogated, he must be appraised of his
out what happened rights to remain silent and to legal counsel
Non-flagrant offence: judicial investigation
Accusatorial/adversarial system can be opened at the request of the public
prosecution

RIGHT TO A FAIR TRIAL – ART 6 ECHR

• 6(2) presumption of innocence
• 6(1) right to remain silent and privilege against self-incrimination à both are implicit
o Right to remain silent: only applied to acoustic/oral communication
 o Privilege against self-incrimination: applies to oral and written information
SAUNDERS V THE UK
• Question
o What is the scope of privilege against self-incrimination under Art 6(1) ECHR?
• Rule
o Evidence which has an existence depending on the will of the accused falls
within the scope
§ Applies for: statements
§ Does not apply for: DNA testing, blood or urine samples, etc.
o Non-incrimination only goes as far as spoken statements, so physical evidence
is permitted

JALLOH V GERMAY
• Question
o Was there a violation of Art 3 ECHR?
o Has the privilege against self-incrimination under Art 6(1) ECHR been violated?
• Definitions
o Inhuman: premeditated, applied for hours at stretch, caused either actual
bodily injury or intense physical and mental suffering
o Degrading: arouse in its victims’ feelings of fear, anguish and inferiority capable
of humiliating and debasing them and possible breaking their physical or morel
resistance
• Rule
o If evidence is degrading or based on torture it is inadmissible
o Criteria to determine violation of Art 3 ECHR
i. Extent to which forcible intervention was necessary to obtain evidence
ii. Health risks for the suspect
iii. Manner in which the procedure was carried out and the physical and
mental suffering it caused
iv. Degree of medical supervision available
v. Effects on the suspect’s health
o Criteria to determine violation of Art 6(1) ECHR
i. Nature and degree of compulsion
ii. Weight of the public interest
iii. Existence of relevant safeguards in the procedures
iv. Use to which any material so obtained is put in trial

GAFGEN V GERMANY
• Question
o Does a violation of Art 3 constitute a violation of Art 6(1) ECHR?
• Definitions
o Torture: inhuman treatment causing very serious and cruel suffering. The
intentional infliction of severe pain or suffering with the aim of obtaining
information, inflicting punishment or intimidating
• Rule
o Violation of Art 3 does not automatically mean violation of Art 6
 § Torture has more severity than inhuman or degrading à automatic
breach of Art 6 if torture has been used
o Criteria – whether a treatment has attained the minimum level of severity to
bring within the scope of Art 3
i. Duration of treatment
ii. Physical or mental effects
iii. Intentional
iv. Purpose
v. Context

ALLAN V THE UK
• Question
o Is there a violation of the applicant’s privilege against self-incrimination under
Art 6(1)?
• Rule
o Criteria to determine violation of Art 6(1) ECHR
i. Nature and degree of compulsion
ii. Weight of the public interest
iii. Existence of relevant safeguards in the procedures
iv. Use to which any material so obtained is put in trial

SALDUZ V TURKEY
• Question
o Has the right to access to a lawyer been violated under Art 6(3)c ECHR?
• Rule
o Access to a lawyer should be provided from the first interrogation of a suspect
by the police
§ Even where compelling reasons may exceptionally justify denial of
access to a lawyer, such restriction must not prejudice the right to a fair
trial
o Incriminating statements made during police interrogation without access to a
lawyer cannot be used for conviction

WEEK 4 - PART A

SELF DEFENSE
à justification
Criteria for the use of self-defense
1. Defense of legitimate interests
• Life, body, integrity, etc.
• Dutch law: trespassing is not covered by self-defense
• German law: trespassing is covered by self-defense
2. Imminent attack
• The time for the use of force will brook no delay: is there an imminent danger?
• A mere fear or an attack does not warrant self-defense
3. Unlawful attack
 • A person may not defend himself against lawful force
4. Proportionality
• The harm done to the aggressor must not be excessive relative to the harm
threatened
5. Necessity
• Less drastic way to achieve the goal of self-defense à subsidiarity
• Generally, there is no duty to retreat when thief invades home/property
6. Prior fault
• The defendant must not have wrongfully placed himself in the situation

SELF DEFENSE EXCESS

à Excuse
First three criteria from self-defense need to be fulfilled in order for self-defense excess to be
acceptable à defense of a legitimate interest, imminent attack, unlawful attack
Intensive excess: using too much force
Extensive excess: continuing too long with legitimate defense
Extensive excess of second degree: starting defense after the attack

NECESSITY
à justification
Criteria for the use of necessity
1. Imminent danger of legitimate interest
• The defendant must be faced with an imminent danger that a legitimate
interest will be harmed
2. Adequate means
• The defendant must expect that his action is an adequate way to protect the
interest
3. Subsidiarity
• There must be no effective legal way or less intrusive way to protect the
interest
4. Proportionality
• The interest that is protected should be (much) more important than the
interest of not violating the law
5. Prior fault
• The defendant must not have wrongfully placed himself in a situation in which
he was forced to engage in criminal conduct

DURESS
à excuse
Criteria for the use of duress
1. Imminent danger of legitimate interest
• The defendant must be faced with an imminent danger that a legitimate
interest will be harmed
2. Subsidiarity
• There must be no effective legal way or less intrusive way to protect the
interest
3. Psychological pressure
• The defendant must have acted because of immense psychological pressure
 4. Reasonable pressure for one not to resist it
• The psychological pressure should be reasonable
o More serious offence, more resistance is required
o Prior fault might make it unreasonable to give in to the pressure
o More resistance might be required on account of a professional
position
o Less resistance might be required on account of age, mental disorder,
etc.

WEEK 4 - PART B

PROSECUTION
• Prosecution service: entity vested with power to take the crucial decision
whether criminal cases should be forwarded to courts or not
o Police do not have the power to prosecute
o Position within the overall state structure
§ Subordinated to political power (minister of justice) à NL
§ Not subordinated to any other state power à Italy
§ Elected and responsible to the people à USA
• In most continental systems, the public prosecutor belongs to the judiciary
• Prosecutorial discretion: power of prosecuting to make decisions pertaining to
how the government will react to an event that could incur criminal liability
• Who can prosecute?
o No right to private prosecution à Netherlands
o Private citizens have the restricted right to institute proceedings à
Germany
o Private citizen right to prosecute when prosecution service declines to
charge à USA, Denmark, Sweden
o Public and private prosecution coexist à Belgium, France

DISTINCTION IN POWER TO DECIDE ON THE PROSECUTION

Legality Principle
Mandatory prosecution
Only judges decide the merits of the case,
prosecutors have no discretion
Used in Germany, Italy, Spain, etc.
Obligation to prosecute where there are
grounds for suspicion that an individual is
prosecutable for a criminal offense
Opportunity Principle
Expediency principle
Enforcement agencies have discretion on
whether or not to prosecutre
Used in USA, England, Wales, etc.
Gives the public prosecutor the right not to
initiate or conduct criminal proceedings
despite there being legal conditions for
such criminal prosecution

CIVIL V COMMON LAW

• Public v private prosecutions
o Civil law: long tradition of public authorities prosecuting
o Common law: prosecution was left to private individuals or police, then
became the job of prosecutors
• Right to private prosecution v state monopoly
o Civil law: general rule is state has a monopoly à hierarchical structure
 o Common law: private to prosecute exists, with limits

PRINCIPLE OF IMMUTABILITY
• A change of the accusation is only possible after the communication of this charge to
the defense and unless the defense has been given a sufficient amount of time to
adapt his defense to the new charges

NB: always consider Arts 6(2) and 6(3) in conjunction with 6(1)

SALVADOR TORRES V SPAIN

• Question
o Does the change of the accusation constitute a violation of Art 6(3)a and 6(3)b
ECHR?
• Rule
o Defendant should be notified if there is a change in the accusation against him,
if not, the element(s) of the offence on which one is convicted have to be
intrinsic to the original accusation
o Element already present in the initial charge à no violation
o Element new or different than initial charge à violation

PELISSIER AND SASSI V FRANCE

• Question
o Does the change of the accusation constitute a violation of Art 6(3)a and 6(3)b
ECHR?
• Rule
o Confirmation of ST v S
o A criminal defendant must be afforded the possibility of exercising their
defense rights in a practical, effective and timely manner
o Criteria - violation of Art 6(3)a
i. Is there a change in the original accusation? If yes,
ii. Was the defendant informed of the modification? If yes,
iii. Does this change concern an element intrinsic to the original
accusation?

RANTSEV V CYPRUS AND RUSSIA

• Question
o Is there a violation of a positive obligation by a contracting state?
• Rule
o Contracting states have positive obligations arising from the convention that
they have to ensure in order to protect people à Art 2 and 4 ECHR
i. To respect: state’s organs not to commit violations themselves
ii. To protect: state has to protect owners of rights and punish offenders
iii. To implement: measured to give realization and effect to rights
WEEK 5 - PART A

No liability – conspiracy/preparation – attempt (subjective) – attempt (objective) – complete offence

PREPARATION
ACTUS REUS OF PREPARATORY ACTS
• The perpetrator intentionally obtains, manufactures, imports, transits, exports or has
at his disposal objects, substances, information carriers, spaces or means of transport
intended for the commission of the crime
MENS REA OF PREPARATORY ACTS
• Intention of the perpetrator has to be connected to the commission of a particular
crime

CONSPIRACY
If a person agrees with any other person(s) that a course of conduct shall be pursued which,
if the agreement is carried out in accordance with their intentions, either:
a) Will necessarily amount to or involve the commission of any offense(s) by one or more
of the parties to the agreement, or
b) Would do so but for the existence of facts which render the commission of the
offence(s) impossible
He is guilty of conspiracy to commit the offense(s) in question

ATTEMPT
ACTUS REUS OF ATTEMPTS
• How much have been done?
• At what point should X be liable for attempted murder?
A. Subjectivist (culpability centered) approach
• Justification of attempt liability: person shows that he is a dangerous or culpable
• Result: attempt is constituted in an early stage
• Focus on what has already been done
• Criterion: is act clear evidence of the defendant’s intent to commit the crime?
B. Objectivist (harm centered) approach
• Justification of attempt liability: committing an act that is dangerous to a legal
interest
• Result: attempt is constituted in a late stage
• Focus on what still remains to be done
• Criterion: is there any act of manifest criminality?
MENS REA OF ATTEMPTS
• Perpetrator manifests his intention by initiating the crime
• Netherlands
o Same requirements as for complete offences
o Conditional intent suffices
• England
o Intention of committing the complete offence is required
o Direct or indirect intent needed
TYPES OF ATTEMPT
Complete attempt
• The defendant does everything he intended to do in order to effect
the criminal project but this fails to bring about the intended
consequence
Incomplete attempt
• The defendant does not get to the point of executing the offence
Failed attempt
• The defendant can no longer achieve the intended goal because of
external circumstances
o Victim refuses to give in to threat
o The object the thief wants to steal is not there
Relatively impossible attempt – Dutch law
• Due to extrinsic factors, the means/object was unsuitable in the case
at hand
Absolutely impossible attempt – Dutch law
• Attempts that under no circumstance can lead to the envisaged result

VOLUNTARY WITHDRAWAL
• English law
o No voluntary withdrawal à after committing a criminal attempt, one is liable
and there is no way to escape it
o Voluntary withdrawal matters for the trial à lesser sentence
• One can only withdraw from a preparation or an attempt
o Just thinking about an offence does not even amount preparation
§ A decides to kill B, but later realizes that killing B is morally wrong so
abandons the plan à there is no voluntary withdrawal because there
was no attempt
REASONABLE CRIMINAL TEST
• Would the reason for the withdrawal lead a reasonable criminal to abandon the
criminal project?
o Remorse?
o Realizing the act is morally wrong?
o Fear of getting caught by the police?
o Realizing that you did not bring the right tools to break into a house?

WEEK 5 - PART B

RIGHT TO A FAIR TRIAL – TRIBUNAL

• Independent from other governmental bodies
o Does not apply to prosecutors
o Evaluation of independence is two-fold
§ Institutional independence
§ Personal independence
• Impartial
o Does not apply to prosecutors
o Absence of prejudice or bias
o Test for impartiality – De Cubber v Belgium
 § Subjective approach
§ Objective approach
• Established by law
OTHER PRINCIPLES RELATED TO THE TRIAL
• Right to a public trial
• Principle of publicity of the veredict

DE CUBBER V BELGIUM
• Question
o Is the right to an impartial tribunal violated under Art 6(1) ECHR?
• Rule
o Subjective approach: ascertains the personal conviction of a judge
§ Impartiality is presumed
§ There needs to be proof of a personal conviction
o Objective approach
§ Determines whether sufficient guarantees were offered to exclude
legitimate doubt
o One or both can be proved

COLOZZA V ITALY
• Question
o Is there a violation of the right to be present at trial under Art 6(3)c in
conjunction with Art 6(1) ECHR?
• Rule
o Criteria – validity of in absentia proceedings
i. The accused voluntarily waived his right to be present unequivocally
(knowingly, voluntarily and intelligently)
ii. If the accused does not do so, state authorities exercised reasonable
amount of due diligence to contact the accused
iii. There must be a possibility of a retrial after trial in absentia

LALA V THE NETHERLANDS

• Question
o Is there a violation of the right to counsel under Art 6(3)c in conjunction with
Art 6(1) ECHR?
• Rule
o If defendant is properly summoned and does not appear to the trial, this cannot
deprive him to be defended by a lawyer
o If someone waives their right to be present, they still have the right for a lawyer
present during the trial
WEEK 6 - PART B

EVIDENCE
TYPES
• Physical evidence
o Forensic and technical evidence
o Instruments of crimes
o Medical reports
• Testimonial evidence
o Victim
o Eyewitness
§ Must be dealt with necessary caution
o Co-conspirator
o Informant
o Defendant
o Expert
SYSTEMS REGARDING EVALUATION OF EVIDENCE
Systems of free evaluation evidence
• Judge is free to review all alleged evidence
• NB: illegally obtained evidence must be excluded
• Examples: Germany, France, Italy
Systems of legal rules as to evaluation of evidence
• Positive system
o If evidence is present, judge must convict
• Negative system
o Even if evidence is present, judge can acquit
o Example: the Netherlands
§ Art 339-344 – legal means of evidence are:
i. Judges own observations
ii. Statements of defendant
iii. Witness statements
iv. Statements of an expert
v. Written documents
§ Minimum rules of evidence
i. One confession = no confession
ii. One witness = no witness
iii. One official report under oath is sufficient for
establishment of guilt

ALTERNATIVE SETTLEMENT OF CRIMINAL CASES: WAIVERS

Two basic models
One-sided – take it or leave it proceedings
• Prosecutor makes an offer to the defendant which the latter can
accept or ignore
Two-sided – negotiate justice
• Prosecutor and defendant discuss the case and agree on certain
settlement
SCHATSCHASWILI V GERMANY
• Question
o Is there a violation of the right to examine or have examined witnesses under
Art 6(3)d in conjunction with Art 6(1) ECHR?
• Rule
o Al-Khawaja test
i. Whether there was a good reason for the non-attendance of the
witness
ii. Whether the evidence of the absent witness was the sole or decisive
basis for the conviction
iii. Whether there were sufficient counterbalancing factors (safeguards)
o Clarification of Al-Khawaja test
i. Does the lack of good reason for the absence of the witness violates
articles 6(3)d and 6(1) ECHR? No
ii. Are sufficient counterbalancing factors necessary if the witness
statement was not the sole or decisive evidence in the case? Yes à do
not stop after assessing the second criteria
iii. Is there a strict following order for the Al-Khawaja test? As a rule, yes,
but in given cases a different order is ok to change if one step is
conclusive to the fairness or unfairness of the proceedings

NATSVLISHVILI AND TOGONIDZE V GEORGIA

• Question
o Was Art 6(1) ECHR violated due to the agreement of plea bargaining?
• Rule
o Plea bargaining is only possible if the suspect accepts the guilt
o Plea bargain should follow 2 conditions
i. The bargain had to be accepted by the applicant in full awareness of
the facts of the case and legal consequences in a genuinely voluntary
manner
ii. The content of the bargain and the fairness of the manner in which it
had been reached between the parties had to be subjected to sufficient
judicial review