ECHR: Convention Violations and Case-Law

Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Tue May 03, 2016 12:14 am

Modified from my 2 May 2015 post on ISF, in response to Vixen:

Guilters such as Vixen often exaggerate Amanda Knox's statements about her mistreatment by the police to make it appear that she has claimed that that mistreatment amounted to "torture".

For example, Vixen uses the following argument in an ISF post:
Her lawyers submitted a claim under Article 3: Torture to the ECHR.

to support such an exaggeration of what Amanda actually has stated.

This statement in Vixen's post is a half-truth not unexpected from someone with an agenda whose posts do not report actual truths or bother with accurate references. It implies that Amanda Knox and her lawyers are exaggerating the degree of mistreatment that they allege the police administered during the interrogation. There is no known statement from Knox or her lawyers alleging that Knox was tortured.

The full text of Article 3 of the European Convention on Human Rights as a PDF may be found from a link on:

http://echr.coe.int/Pages/home.aspx?...122487_pointer

The whole text of Article 3 is:

Article 3. Prohibition of Torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.


A review of the ECHR case-law indicates that the treatment described by Amanda Knox in her Memoriale I and her court testimony would likely fall under "inhuman or degrading treatment".

A case-law reference (one of many relevant ones) is Bouyid v. Belgium 23880/09 [GC], in which the ECHR found that police slapping, without reasonable justification, of two individuals who were at a police station, amounted to degrading treatment.

Here is an excerpt from the legal summary of the Bouyid case:

The Court emphasised that the administration of a slap by a police officer to a person who is completely under his control constitutes a serious attack on the latter’s dignity.

A slap to the face has a considerable impact on the person receiving it, because it affects the part of the person’s body which expresses his individuality, manifests his social identity and constitutes the centre of his senses – sight, speech and hearing – which are used for communication with others.

Given that it may well suffice that the victim is humiliated in his own eyes for there to have been degrading treatment within the meaning of Article 3, a slap – even if it is isolated, not premeditated and devoid of any serious or lasting effect on the person receiving it – may be perceived as a humiliation by the person receiving it.

When the slap is administered by police officers to individuals who are under their control, it highlights the superiority/inferiority relationship. The fact that the victims know that such an act is unlawful, constitutes a breach of moral and professional ethics by the officers and is unacceptable, may furthermore arouse in them a feeling of arbitrary treatment, injustice and powerlessness.

Moreover, persons who are held in police custody or are even simply taken or summoned to a police station for an identity check or questioning – as in the applicants’ case – and more broadly all persons under the control of the police or a similar authority, are in a situation of vulnerability. The authorities who are under a duty to protect them flout this duty by inflicting the humiliation of a slap.

The fact that the slap may have been administered thoughtlessly by an officer who was exasperated by the victim’s disrespectful or provocative conduct was irrelevant. The Grand Chamber therefore departed from the Chamber’s approach on this point. The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned. In a democratic society ill-treatment is never an appropriate response to problems facing the authorities. The police, specifically, must “not inflict, instigate or tolerate any act of torture or inhuman or degrading treatment or punishment under any circumstances” (European Code of Police Ethics). Furthermore, Article 3 of the Convention imposes a positive obligation on the State to train its law-enforcement officials in such a manner as to ensure their high level of competence in their professional conduct so that no one is subjected to torture or treatment that runs counter to that provision.

Lastly, the first applicant had been a minor at the material time. It is vital for law-enforcement officers who are in contact with minors in the exercise of their duties to take due account of the vulnerability inherent in their young age. Police behaviour towards minors may be incompatible with the requirements of Article 3 of the Convention simply because they are minors, whereas it might be deemed acceptable in the case of adults. Therefore, law-enforcement officers must show greater vigilance and self-control when dealing with minors.

In conclusion, the slap administered to each of the applicants by the police officers while they were under their control in the police station did not correspond to recourse to physical force that had been made strictly necessary by their conduct, and had thus diminished their dignity.

Given that the applicants referred only to minor bodily injuries and had not demonstrated that they had undergone serious physical or mental suffering, the treatment in question could not be described as inhuman or, a fortiori, torture. The Court therefore found that the present case involved degrading treatment.


There are some differences between the Bouyid case and the Knox case. One is that the Bouyids showed medically detectable signs of the slaps, and those signs were noted and recorded by a medical examination. There is no such medical evidence in the Knox case.

However, another important difference is that in the Knox case, the alleged mistreatment, including but not limited to slaps, threats, and psychological abuse - including suggestion by the interpreter - was directed to coerce Knox to make a statement implicating her in the knowledge of Kercher's murderer/rapist, and was carried out over a period of hours. And the evidence of the mistreatment includes the sudden appearance of two false statements - in Italian - from Knox under police and prosecutor questioning on November 5/6, 2007, followed by partial and complete retractions in Knox's Memoriales I and II - in English, her native language - of November 6 and 7, respectively, with a report of the mistreatment in Memoriale I as well as in court testimony and appeals. These important differences will lead the ECHR to judge the mistreatment of Knox more severely than that administered to the Bouyids, because the mistreatment of Knox was intended by the police and prosecutor to coerce a statement for use in a trial.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon May 09, 2016 12:36 pm

While we await a communication from the ECHR to Italy for Amanda Knox's claim that Italy violated her Convention rights in convicting her of calunnia against Patrick Lumumba, for information on ECHR methodology, excerpts from a recent ECHR communication in a somewhat similar (not identical) case are copied here.

THIRD SECTION

Application no. 21388/15
Šandor ALMAŠI
against Serbia
lodged on 29 April 2015

STATEMENT OF FACTS

1. The applicant, Mr Šandor Almaši, is a Serbian national, who was born in 1979 and lives in Male Pijace. He is represented before the Court by Mr V. Juhas Đurić, a lawyer practising in Subotica.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. On 18 April 2011 at about 4.00 p.m. the applicant was arrested and his apartment was searched by the police officers, during which among other things, his phone cards were taken away. He was brought to the Regional Centre of the Border Police (Regionalni centar granične policije) in Subotica concerning an alleged illegal border crossing and people smuggling.

4. At 5.00 p.m. the police ordered his detention for a period of 48 hours. The applicant was provided with a detention order, which stated that he had been deprived of his freedom on suspicion of having committed the crime of illegal border crossing and the crime of people smuggling.

5. The applicant was provided with a legal aid lawyer, who, according to the applicant, had been randomly chosen by the police officers from a list of lawyers of the Bar Association. According to the applicant, just prior to the lawyer’s arrival, he was slapped a couple of times in the face by the police officer. The applicant, also, claimed that he signed the statement in which he confessed the crime for fear of police brutality. According to the official record of his interrogation, the applicant confessed the crime, and then signed the document. The record further stated that, pursuant to Article 177 of the Code of Criminal Procedure (see paragraph 34 below), the applicant had read them, at his own request, and had had no objections. The minutes were also signed by the legal aid lawyer. The Public Prosecutor (javni tužilac) had been informed of the hearing on 18 April 2011 at 5.15 p.m., but did not attend it. The interrogation lasted from 6.10 p.m. to 6.40 p.m.

6. Only after the interrogation had been concluded, according to the applicant, he was allowed to call his partner in order to engage a lawyer of his own choosing.
....
16. The applicant confirmed his statements already given before the investigating judge. He also alleged that he had been unable to call his own lawyer, since his phone had been taken away by the police officers earlier. He claimed that before the legal aid lawyer arrived the statement had been already prepared by the police. Also he alleged that the police officers had threatened to put him in a cell if he revealed to the State-appointed lawyer that he had been subjected to ill-treatment. Lastly, in respect of the charges brought against him he remained silent.

17. The investigating judge acting as a witness stated that during the interrogation she had not noticed any injuries on the applicant’s face. She added that she had been two or two and a half metres away from the applicant and that she had not approached him any closer.

18. The applicant’s lawyer requested the court to call a doctor who examined the applicant at the material time as a witness. The lawyer also asked the court to call the applicant’s’ partner as a witness as she had allegedly seen the applicant after the interrogation of 19 April 2011 and had observed his injuries (bruises on his face). The First Instance Court in Subotica refused both of the applicant’s lawyer’s requests.

19. 10 July 2011 the First Instance Court in Subotica decided to exclude the applicant’s statement of 18 April 2011 from the case file on the ground that he had not been interrogated in accordance with the Code of Criminal Procedure since he had never explicitly waived his right to be represented by the lawyer of his own choosing.

20. On 3 August 2011 the Appeals Court (Apelacioni sud) in Novi Sad quashed this decision and declared the applicant’s statement of 18 April 2011 legally valid. It noted inter alia that the applicant had been properly advised of his procedural rights and it was quite unclear why the First Instance Court in Subotica had ruled that the interrogation had not been in accordance with the Code of Criminal Procedure merely because the applicant’s statement did not contain his declaration regarding the right to engage a lawyer of his own choosing.

21. On 16 September 2011 the First Instance Court in Subotica found the applicant and co-accused guilty of illegal border crossing and people smuggling and sentenced each of them to one year’s imprisonment. In its reasoning the First Instance Court in Subotica inter alia rejected the applicant’s complaint that he had been subjected to ill-treatment as ill-founded, as his complaint were contrary to the witnesses’ statements. It also noted that the applicant had been interrogated by the police officers in accordance with the Code of Criminal Procedure. As to the applicant’s conviction, the First Instance Court in Subotica took note of the applicant’s confession of 18 April 2011.

22. On 17 October 2011 the applicant’s lawyer filed an appeal on behalf of the applicant.

23. On 1 December 2011 Appeals Court in Novi Sad upheld the First Instance Court in Subotica’s decision and essentially, re-affirmed the reasoning of the First Instance Court.

24. Subsequently the applicant lodged his appeal with the Constitutional Court.

25. On 31 March 2015 the Constitutional Court rejected (odbacio) the applicant’s appeals as being of a fourth instance nature.

B. Relevant domestic law

1. The Criminal Code (Krivični zakonik, published in Official Gazette of the Republic of Serbia -OG RS- no. 85/05, amendments published in Official Gazette nos. 88/05, 107/05, 72/09 and 111/09)

26. The relevant Article reads as follows:



Article 137 (Ill-treatment and Torture)

“1. Whoever ill-treats another or treats such person in humiliating and degrading manner shall be punished with imprisonment of up to one year.

2. Whoever causes severe pain or suffering to another for such purposes as obtaining from him or a third person a confession, a statement or information, or intimidating or unlawfully punishing him or a third person, or for any reason based on discrimination, shall be punished with imprisonment from six months to five years.

3. If the offence specified in paragraphs 1 and 2 above is committed by an official acting in an official capacity, the official shall be punished for the offence in paragraph 1 with imprisonment from three months to three years, and for the offence in paragraph 2 with imprisonment from one to eight years.”



2. The Code of Criminal Procedure (Zakon o krivičnom postupku, published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – no. 70/01, amendments published in OG FRY no. 68/02 and in OG RS nos. 58/04, 85/05, 115/05, 49/07, 20/09, 72/09 and 76/10)



27. Article 12 prohibits, inter alia, any and all violence aimed at extorting a confession or a statement from the suspect and/or accused.

28. Articles 18 § 2 and 178 provide that a court decision may not be based on evidence obtained in breach of domestic legislation, or in violation of ratified international treaties, and that any such evidence must be excluded from the case file.
....
COMPLAINTS

(a) Under Article 3 of the Convention the applicant complains about the police ill-treatment of 18 April 2011, as well as the respondent State’s subsequent failure to conduct any investigation into this incident.

(b) Under Article 6 § 1 of the Convention the applicant complains about the overall lack of fairness of the criminal proceedings brought against him. In particular, he complains about the admission and use of evidence obtained as a result of ill-treatment.

(c) Under Article 6 § 3 (c) of the Convention the applicant complains that on 18 April 2011 he was denied the legal assistance of his own choosing.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to treatment contrary to Article 3 of the Convention whilst in police custody on 18 April 2011 (see, Bouyid v. Belgium [GC], no. 23380/09, ECHR 2015)?

2. Having regard to the procedural protection from ill-treatment (see, among many other authorities, paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the alleged lack of an investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

3. Having regard to the admission into evidence by the criminal courts of his statement made before the police on 18 April 2011, did the applicant have a fair hearing in the determination of the criminal charge against him in accordance with Article 6 § 1 of the Convention (see Gäfgen v. Germany [GC], no. 22978/05, § 166, 1 June 2010)?

4. Was the applicant able to defend himself through legal assistance of his own choosing on 18 April 2011, as required by Article 6 § 3 (c) of the Convention (see Dvorski v. Croatia [GC], no. 25703/11, § 100, 20 October 2015, with further references)?
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Fri May 13, 2016 6:14 pm

Another ECHR communicated case which has elements of relevance (as well as important differences) with the case Amanda Knox has brought before the ECHR. The questions directed to the parties in this case are quite brief but broad.

THIRD SECTION

Application no. 27787/15
Olten Edmund GAMBIER
against the Netherlands
lodged on 4 June 2015

STATEMENT OF FACTS

1. The applicant, Mr Olten Edmund Gambier, is a Dutch national, who was born in 1976 and lives in Amsterdam. He is represented before the Court by Mr J.J. Weldam, a lawyer practising in Utrecht.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant was arrested on 11 June 2012 at 2.22 p.m. on suspicion of having shoplifted 131 tubes of toothpaste on 15 May 2012. The applicant was taken into police custody at 5.20 p.m.

4. Shortly after he had been taken into police custody the applicant was informed of his right to consult a lawyer prior to being questioned and of the possibility to be assigned a lawyer free of charge for this purpose. The applicant stated that he indeed wished to be assigned a lawyer free of charge. At 8.40 p.m. the police commenced questioning the applicant without a lawyer having come to the police station to provide him with legal assistance. At the beginning of the interview the applicant was reminded by the police investigators of his right to remain silent. In the course of the interview he confessed that he had stolen about twenty tubes of toothpaste. The interview ended at 9.40 p.m. and the applicant was released from police custody later that same day.

5. In the course of the subsequent trial, which took place before a single-judge chamber (politierechter) of the Midden-Nederland Regional Court (rechtbank), the applicant’s lawyer argued that his confession should be excluded from the evidence, as it had been obtained without the applicant having had the opportunity to consult a lawyer and without his having waived that right. The applicant himself did not appear at the hearing, but had authorised the lawyer to represent him.

6. On 18 March 2013 the applicant was convicted of shoplifting and sentenced to 30 hours’ community service and to a suspended term of one week’s imprisonment. The conviction was, inter alia, based on the applicant’s confession to the police, the Regional Court considering that the Legal Aid Duty Roster Service (“the Duty Roster Service” – piketcentrale) had been duly notified at 5.30 p.m. and that questioning had started at 9.30 p.m. because no lawyer had appeared and it had not been possible to wait any longer.

7. The applicant lodged an appeal with the Arnhem-Leeuwarden Court of Appeal (gerechtshof). He submitted, inter alia, that the case file did not contain a copy of the notification to the Duty Roster Service and that the defence had therefore been unable to ascertain that such a notification had indeed been made. The police ought at the very least to have made enquiries with the Duty Roster Service about the absence of a lawyer prior to starting to interview the applicant. Since there had been no special circumstances on the basis of which it would have been permissible to restrict the right of access to a lawyer, there had been a breach of Article 6 § 3 (c) of the Convention, which, under national law, constituted non-compliance with a procedural requirement (vormverzuim) and, pursuant to established domestic case-law, that ought to have led to the exclusion of the evidence obtained in that manner. At the hearing before the Court of Appeal the applicant again did not appear, but was represented by his lawyer.

8. On 29 July 2013 the Court of Appeal quashed the Regional Court’s judgment, convicted the applicant of shoplifting and sentenced him to 30 hours’ community service and to a suspended term of one week’s imprisonment. The Court of Appeal rejected the applicant’s argument that his confession should not be used in evidence because he had not had access to a lawyer prior to the police interview. It held that the Duty Roster Service had been informed at 5.30 p.m. of the applicant’s wish to consult a lawyer and that questioning had commenced at 8.40 p.m., as by 7.30 p.m. no lawyer had appeared. As the police had acted in accordance with the instructions in force, procedural requirements had been complied with. The Court of Appeal held in addition that in view of the relatively minor level of seriousness of the criminal offence at issue, the applicant’s deprivation of liberty should be kept as short as possible.
....
10. The Supreme Court dismissed the appeal on points of law on 9 December 2014. It held, inter alia, as follows:

“4.5 A suspect who has been arrested by police can claim under Article 6 of the Convention an entitlement to legal assistance, which entails that he be given the opportunity to consult a lawyer prior to being questioned by police about his involvement in a criminal offence. The arrested suspect should be informed of his right to consult a lawyer before the first interview begins. Except in the case where he, either explicitly or implicitly, but in any event unequivocally, waives that right, or where compelling reasons exist within the meaning of the case-law of the European Court of Human Rights, he will, within reasonable limits (binnen de grenzen van het redelijke), have to be offered the opportunity to effectuate that right. If an arrested suspect has not, or has not within reasonable limits, been given the opportunity to consult a lawyer prior to being questioned by police, this will in principle constitute non-compliance with a procedural requirement within the meaning of Article 359a of the Code of Criminal Procedure (Wetboek van Strafvordering), which, after a plea to that effect, should as a rule lead to the exclusion from the evidence of statements made by the suspect before he was able to consult a lawyer. ...

4.6 Whether in a particular case an arrested suspect was ‘within reasonable limits’ given the opportunity to exercise his right to consult a lawyer will depend on the circumstances of the case.

... the Court of Appeal based its judgment that this had been the case on the fact that the two-hour period laid down in the Instructions on Legal Assistance and Police Questioning (Aanwijzing rechtsbijstand politieverhoor) had been complied with and that the case was of relatively minor seriousness, as a result of which the deprivation of liberty was to be as short as possible. The judgment of the Court of Appeal is not incomprehensible and, having regard to what has been adduced on behalf of the suspect in this connection, it does not require further reasoning.”

COMPLAINT

The applicant complains that Article 6 §§ 1 and 3 (c) of the Convention was violated, given that a statement made by him to police without his having been able to consult a lawyer was used in evidence against him.


QUESTIONS TO THE PARTIES

1. Can it be ascertained

– whether the notification that the applicant wished to be assigned a lawyer was received by the Legal Aid Duty Roster Service (piketcentrale);

– why no lawyer appeared at the police station within two hours of that notification; and

– whether a lawyer appeared at the police station at any time after those two hours had elapsed?


2. Did the applicant have a fair trial in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, was his right to have access to a lawyer respected, as required by Article 6 § 3 (c) of the Convention?
 
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Re: ECHR: Convention Violations and Case-Law

Postby justme » Tue May 17, 2016 10:43 am

It is being reported in the Italian press that the ECHR will hear Ms. Knox's claim that her human rights were violated by the Italian government when it interrogated her and coerced the claim that Mr. Lumbumba was the murderer. The Italian government has been notified of the intent of the court to take-up the case, so that the government can defend itself.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Tue May 17, 2016 5:01 pm

justme wrote:It is being reported in the Italian press that the ECHR will hear Ms. Knox's claim that her human rights were violated by the Italian government when it interrogated her and coerced the claim that Mr. Lumbumba was the murderer. The Italian government has been notified of the intent of the court to take-up the case, so that the government can defend itself.


Yes, this is currently (17 May 2016) being discussed on the main thread.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Tue May 17, 2016 8:05 pm

For completeness, here is the "bottom line" excerpted from the Communication to Italy, copied from the Main thread.

Here is an attempt at a translation of the ECHR Communication sections of the Complaint, Request for Information, and Questions to the Parties, edited for clarity.



Communiquée le 29 avril 2016

PREMIÈRE SECTION
Requête no 76577/13
Amanda Marie KNOX
contre l’Italie
introduite le 24 novembre 2013

Application number 76577/13
Amanda Marie KNOX
Against Italy
Lodged 24 November 2013


COMPLAINTS

1. The applicant raises several complaints concerning the fairness of the criminal proceedings following which she was sentenced to three years in prison for false accusation.

a) Relying on Article 6 §§ 1 and 3 [a]) of the Convention, the applicant complained of not being informed promptly and in a language understandable to her of the nature and cause of the accusation she was charged with.

b) In terms of Article 6 §§ 1 and 3 c), she also alleges that she was not assisted by a lawyer during the interrogation of 6 November 2007.

c) Relying on Article 6 §§ 1 and 3 e), the applicant also complains that she was not assisted by a professional and independent interpreter during interrogation and that the police officer who assisted during interrogation of 6 November 2007 performed the duties of "mediator" suggesting hypotheses about the sequence of events.

2. Relying on Article 3 of the Convention, the applicant complained that the pats on the head she suffered (scappellotti) constituted inhuman and degrading treatment.

3. Relying on Article 8 of the Convention, she denounces the violation of his right to respect for private and family life, on the grounds that, on 6 November 2007, she was forced to answer questions about Mr. DL so that she was in a state of defective judgment and will (incapacità di intendere volere e) and under psychological pressure.

INFORMATION REQUEST

1. The applicant is requested to produce a copy of the judgment of the Perugia court of 5 December 2009 regarding her conviction for false accusation and a copy of the appeal and of the appeal regarding this procedure.

2. The parties are invited to indicate whether the judgment of the Florence Court of 14 January 2016 was appealed or if it has become final and to provide copies of relevant documents.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted the domestic remedies available to her to complain about the violation of Article 3 of the Convention, concerning the slaps (scappellotti) allegedly suffered, and Articles 6 §§ 1 and 3 a), c) and e) and 8 of the Convention?

2. If so:

a) Was the applicant subjected, in breach of Article 3 of the Convention, to inhuman or degrading treatment?

b) Was the applicant, as required by Article 6 § 3 a) of the Convention, informed promptly, in a language she could understand and in detail, of the nature and cause of the charges against her for false accusation?

c) Did the applicant have the assistance of counsel of her choice, as required by Article 6 § 3 c) of the Convention, especially during the interrogation of 6 November 2007?

d) Did the applicant obtain the free assistance of an interpreter, within the meaning of Article 6 § 3 e) of the Convention?

e) Did the psychological pressure allegedly suffered by the applicant during the interrogations of 6 November 2007, violate the right of the applicant to a fair trial within the meaning of Article 6 § 1 of the Convention, and the right to respect for private life protected by Article 8 § 1 of the Convention?
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Tue May 17, 2016 9:30 pm

For completeness, copied from the Main thread.

(ANSA) - Strasbourg, May 17 - The European Court of Human Rights on Tuesday accepted an appeal against Italy presented by Amanda Knox, the American woman acquitted by the Cassation Court of having a part in the murder of Meredith Kercher in Perugia. In the appeal, Knox says she was subjected to an unfair trial and was maltreated during questioning. The court judged Knox's dossier to be valid and told the Italian government of its decision so that it can defend itself.
In March 2015 the supreme Cassation Court of appeals acquitted Knox and Italian former boyfriend Raffaele Sollecito in Kercher's 2007 murder, saying that evidence didn't physically link the pair to the scene of the crime. It was the end of an eight-year judicial ordeal for Knox who was first found guilty, then acquitted and finally cleared after a retrial.
Knox's appeal to Strasbourg regards the run-up to her first trial.
In it, she claims she was not given access to a lawyer who spoke English and was rapped on the head during questioning on November 6, 2007, four days after Kercher's murder - allegedly constituting inhumane and degrading treatment.

Source: http://www.ansa.it/english/news/gene...85bcbf39d.html

Comments: The article is good. Of course, an application to ECHR should not be called an "appeal", as this article does, because that implies a relationship between ECHR and the domestic court that does not exist, and the ECHR is not considering issues of guilt or innocence of the applicant, but rather whether or not the Respondent State (Italy, in this case) violated the Convention rights of the applicant. Thus, a person who has been found guilty by a domestic (State) court remains guilty, but under certain findings - such as unfair trial - by the ECHR, must be retried by the State court with full observance of his or her rights. In Italy, this is called a revision trial. In Amanda's case, the revision trial would necessarily exclude as evidence of guilt all of Amanda's statements obtained under duress or without a lawyer; this would lead to the conviction being vacated (dismissal or acquittal) due to a total lack of evidence of calunnia.
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Re: ECHR: Convention Violations and Case-Law

Postby LarryK » Wed May 18, 2016 2:16 am

It is my understanding, isn't it, that the Italian Supreme Court ruled that her interrogation was conducted in violation of her rights, in its Motivation Report concerning her final acquittal of murder? If so, then the ECHR should easily connect the dots that her still-standing calumny conviction was based on that same interrogation which even Italy has now disavowed! So there is no case even left for retrial.
The brain is not configured in a way that makes obedience through logical, language-based propositions possible during distress and suffering. -- James Wilder, "Neurotheology and the Life Model"
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Wed May 18, 2016 8:01 am

LarryK wrote:It is my understanding, isn't it, that the Italian Supreme Court ruled that her interrogation was conducted in violation of her rights, in its Motivation Report concerning her final acquittal of murder? If so, then the ECHR should easily connect the dots that her still-standing calumny conviction was based on that same interrogation which even Italy has now disavowed! So there is no case even left for retrial.


I totally agree that there would be no substantive case to be retried. There would be no evidence of guilt. But there would, as I understand the requirements of Italian procedural law, be a need for some type of court action to overturn the calunnia conviction and entitle Amanda to compensation for the wrongful conviction and wrongful incarceration.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Fri May 20, 2016 4:11 pm

Another ECHR case of interest:

ALEKSANDR ZAICHENKO v. RUSSIA 39660/02 18/02/2010

This case is relevant in part because it relates to someone who was convicted in part based upon a "non-incriminating" statement made under questioning without a lawyer that the prosecution and the domestic courts considered, after the statement was made, to be incriminating. The individual who was charged and convicted was only informed of the right to remain silent after the "non-incriminating" statement had been made.

I will discuss this case in more detail in a second post.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Fri May 20, 2016 6:25 pm

Here is a review of the major relevant points, including excerpts of the judgment, of ALEKSANDR ZAICHENKO v. RUSSIA 39660/02 18/02/2010.

Important points of case-law are emphasized by bolded and/or highlighted text. I apologize for the length of the excerpt, but a case and the application of case-law can be best understood in its relevant detail and context. In a third post, I will gather together the case-law discussed by the ECHR in this case in summary form.

I thank Kauffer who called attention to this case in a post on ISF.

The Facts

6. The applicant worked as a driver for a private company.

7. It appears that at the time there were several reported cases of the company workers allegedly pouring out diesel from their service vehicles. Thus the company's director asked the competent authorities to carry out checks.

8. On 21 February 2001 while driving home in the company of another person (Mr Kh), the applicant's car was stopped and inspected by the police. Two cans of diesel were discovered in the car.

9. According to the applicant, in reply to the questioning by the police he did not tell about the purchase of the fuel because he felt intimidated and did not have a receipt to prove the purchase (see also paragraph 14 below). That is why he explained that he had poured the fuel from the tank of his service vehicle.

10. Immediately, a vehicle inspection record was {written up in accordance with Russian law}. The record reads as follows:

“Vehicle Inspection Record [drawn] at Birofeld village on 21 February 2001 from 8.50 to 9.20 [pm].

....

During the inspection one passenger was present in the car; there was a white plastic can with fuel (ten litres). There was another metallic can of fuel (twenty litres) in the car boot...

The physical evidence has been seized in order to be attached to a criminal file: the plastic can with fuel (ten litres) and the metallic can with twenty litres of fuel...

Requests and comments by the participants: [the applicant] explained that he had poured out the fuel from the company premises.

I have read the record and agree with its contents.

Signatures: Officer B, attesting witnesses K and P, [the applicant], officer L.”

11. Having completed the inspection record, officer B put in writing a statement entitled “Explanations”, which included a note concerning Article 51 of the Constitution of the Russian Federation on the privilege against self-incrimination {which was signed by the applicant}. {The applicant followed this by writing out by hand that he had taken the diesel from his service vehicle and then signing this statement.}”

On the same day, both attesting witnesses made written statements, indicating that they had been present during the inspection of the car and seizure of the fuel. They confirmed that the applicant had explained that he had poured out the fuel from the company premises for personal use.

12. The applicant was not detained. {Russian prosecuting official subsequently opened a criminal case against the applicant on suspicion of theft, based on the following evidence}:

1. the inspection record . 2. [the applicant's] written statement. 3. Mr K's written statement. 4. Mr P's written statement....

The accusation: At 8 pm on 21 February 2001 [the applicant]...being at work intentionally stole from his service vehicle the diesel in the amount of thirty litres. Thereby, he caused to the company pecuniary damage in the amount of 279 roubles.

14. At the trial the applicant was represented by ... a lawyer practising in Birobidjan. As follows from the trial judgment and the trial record, the applicant contended at the trial that he had purchased the fuel on or around 15 February 2001 at a petrol station; on 21 February 2001 he had put the cans in his car intending to exchange it for firewood later and went to his work; after the working day he was stopped by the police on his way home; when stopped he had not told about the purchase of the fuel because he felt intimidated and had no receipt to prove the purchase. He contended that Mr Kh, who was in his car on 21 February 2001, had seen the applicant purchase the fuel at the petrol station....

15. On 20 March 2001 the applicant submitted to the court an invoice for the purchase of diesel. The court refused to accept the invoice in evidence considering that the applicant did not specify why he had not adduced that evidence at the initial stage of the questioning by the police or at the opening of the trial. The applicant, however, indicated that the invoice had been kept by his wife. It also appears that he specified the name and location of the petrol station where he had allegedly bought it and asked the court to verify this fact. It appears that the court did not follow up his request.

16. The trial court heard the applicant's wife, who claimed that she had purchased the fuel and had given one petrol can to the applicant and that the applicant had purchased the remainder. The court also questioned Mr Kh who claimed to have seen the applicant purchasing diesel. Mr Kh was with the applicant on 21 February 2001 and told the court that he had not witnessed any threats to the applicant from the police officers. The trial court refused to take those testimonies into consideration, considering that those persons were in close or friendly relationship with the defendant and that their testimonies would therefore be prejudiced.

17. Instead, the trial judge relied on the inspection record and the written statement made by the applicant on 21 February 2001, testimonies from the attesting witnesses who had been present during the inspection and seizure of fuel from the applicant's car. The court also examined a Mr F who explained there had been cases of workers pouring out diesel from their service vehicles, and thus the company's director had asked the competent authorities to carry out checks. The applicant's car was apparently stopped during one of the checks.

18. {The trial judge convicted the applicant on the basis that he had stated that "he had stolen" the diesel fuel to the police at the inspection check. The judge considered that the applicant's testimony that the diesel had been purchased was untruthful and not supported by objective evidence.}

19. The applicant and his counsel appealed alleging that there was no proof that any diesel had been stolen from the company and that the applicant had not been apprised of the privilege against self-incrimination while the court then relied on his admissions made on 21 February 2001. ... {The appeals court upheld the conviction.} The {appeals} court confirmed that the applicant had been convicted on the basis of his own pre-trial admission and other evidence obtained by lawful means, including the inspection record. The applicant's allegation of self-incrimination had been rightly rejected as unfounded {according to the appeals court}.

The Law

31. The applicant alleged that on 21 February 2001 he had admitted the wrongdoing without the benefit of legal advice, fearing incarceration and in the hope of being acquitted at the trial. The applicant submitted that the village in which the questioning had taken place and the proceedings had been instituted had no lawyers. He had not been afforded any time to retain one from a nearby town.

32. The Government submitted that the applicant's car had been inspected in the presence of two attesting witnesses; two cans of diesel had been seized from the car. As follows from the inspection record signed by the applicant, he had poured out the diesel from his employer's premises. Thereafter, he had been apprised of his right not to testify against himself....

36. The Court reiterates that Article 6 – especially paragraph 3 – may be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its requirements.... The manner in which Article 6 §§ 1 and 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case. In order to determine whether the aim of Article 6 – a fair trial – has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case.

37. In Salduz v. Turkey [GC] (no. 36391/02, §§ 55, 27 November 2008) the Court held that as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction....

38. The Court also reiterates that the right to silence and the right not to incriminate oneself 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, thereby contributing to the avoidance of miscarriages of justice and to the fulfillment of the aims of Article 6 .... The right not to incriminate oneself presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused .... In this sense the right is closely linked to the presumption of innocence contained in Article 6 § 2 of the Convention. In examining whether a procedure has extinguished the very essence of the privilege against self-incrimination, the Court must examine the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put .

39. The general requirements of fairness contained in Article 6 apply to all criminal proceedings, irrespective of the type of offence at issue. Public-interest concerns cannot justify measures which extinguish the very essence of an applicant's defence rights, including the privilege against self-incrimination guaranteed by Article 6 of the Convention (see Bykov, cited above, § 93).

40. Lastly, the Court reiterates that a waiver of a right guaranteed by the Convention – in so far as it is permissible – must not run counter to any important public interest, must be established in an unequivocal manner and must be attended by minimum safeguards commensurate to the waiver's importance.... Moreover, before an accused can be said to have impliedly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be....

(Legal assistance)

46. The Court notes at the outset that the applicant only complained that he had not been afforded enough time to contact a lawyer in a nearby town. The Court cannot but note that, as confirmed by the applicant's representative in his letter to the European Court dated 26 July 2002, both on 21 February and 2 March 2001 the applicant “chose not to exercise his right to legal representation with the hope that the court would give him a fair trial even without counsel”.

47. Moreover, the Court observes that the present case is different from previous cases concerning the right to legal assistance in pre-trial proceedings ... because the applicant was not formally arrested or interrogated in police custody. He was stopped for a road check. This check and the applicant's self-incriminating statements were both carried out and made in public in the presence of two attesting witnesses. It is true that the trial record contains a statement by the applicant suggesting that the writing down of the inspection record and/or his subsequent statement were started on the spot but were completed in the village of Birofeld. Nevertheless, the Court concludes on the basis of the materials in the case file that the relevant events, namely the drawing of the inspection record and the taking of the applicant's explanation, were carried out in a direct sequence of events.

48. Although the applicant in the present case was not free to leave, the Court considers that the circumstances of the case as presented by the parties, and established by the Court, disclose no significant curtailment of the applicant's freedom of action, which could be sufficient for activating a requirement for legal assistance already at this stage of the proceedings.

49. The Court notes that the role of the police in a situation such as in the present case was to draw up an inspection record and receive the applicant's explanation as to the origin of the cans in his car (see paragraphs 9 and 10 above). Having done so, the police transferred the documents to the inquirer who, in his turn, compiled a report to his superior indicating that there was a case to answer against the applicant on suspicion of theft (see paragraph 12 above). This report prompted the inquirer's superior to open a criminal case against the applicant (see paragraph 13 above).

50. At that stage, namely on 2 March 2001, the applicant was apprised of his right to legal assistance. It was open to him to consult a lawyer before attending the meeting on 2 March 2001. At that meeting the applicant was presented with the version of the events based on his statements made on 21 February 2001. The applicant voluntarily and unequivocally agreed to sign the act of accusation and waived his right to legal assistance, indicating that he would defend himself at the trial.

51. The foregoing considerations suffice for the Court to conclude that the absence of legal representation on 21 February and 2 March 2001 did not violate the applicant's right to legal assistance under Article 6 § 3 (c) of the Convention.

(Privilege against self-incrimination and the right to remain silent)

52. Concerning the privilege against self-incrimination and the right to remain silent, the Court has already held that the circumstances of the case disclosed the existence of a suspicion of theft against the applicant after he had failed to prove the fuel purchase.... It is not without relevance in that connection that when putting in writing the applicant's “explanations”, officer B considered it necessary to apprise him of the privilege against self-incrimination. In the Court's opinion, this fact also gives credence to the argument suggesting that already at that time the authorities suspected the applicant of theft. The Convention is intended to guarantee rights that are practical and effective.... The Court considers that in the circumstances of the case it was incumbent on the police to inform the applicant of the privilege against self-incrimination and the right to remain silent.

53. The Court notes that the Government maintained that the applicant had waived his right not to testify against himself. The applicant did not dispute this. It is true that in accordance with Article 51 of the Constitution the applicant was told that he was not obliged to give evidence against himself (see paragraph 21 above). Although it has not been alleged that the above warning was in any way insufficient, {the} Court notes that the applicant was apprised of the right to remain silent after he had already made a self-incriminating statement in the inspection record indicating that he had poured out the diesel from the company's premises.

54. Bearing in mind the concept of fairness in Article 6,the Court considers that the right not to incriminate oneself cannot reasonably be confined to statements of admission of wrongdoing or to remarks which are directly incriminating.... Testimony obtained under compulsion which appears on its face to be of a non-incriminating nature - such as exculpatory remarks or mere information on questions of fact - may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial or to otherwise undermine his credibility ....

55. The Court considers that being in a rather stressful situation and given the relatively quick sequence of the events, it was unlikely that the applicant could reasonably appreciate without a proper notice the consequences of his being questioned in proceedings which then formed basis for his prosecution for a criminal offence of theft. Consequently, the Court is not satisfied that the applicant validly waived the privilege against self-incrimination before or during the drawing of the inspection record. Moreover, given the weight accorded to the applicant's admission at the trial, the Court does not need to determine the validity of the applicant's subsequent waiver of the privilege against self-incrimination in the “Explanations”, which derived from his earlier admission ....

56. In sum, the evidence available to the Court supports the claim that the applicant's pre-trial admission, whether directly self-incriminating or not, was used in the proceedings in a manner which sought to incriminate him. In the Court's view, statements obtained in the absence of procedural guarantees, should be treated with caution ....

57. Hence, what remains to be determined is whether the criminal proceedings against the applicant can be considered fair on account of the use made of the applicant's pre-trial admission. Regard must be had to whether the rights of the defence have been respected and whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, 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.

58. The Court notes in that connection that in so far as it can be discerned from the national courts' reasoning, the applicant's pre-trial admission was not considered to have been obtained in breach of domestic law. The Court considers in its turn that although the applicant was represented by a lawyer at the trial, the detriment he suffered because of the breach of due process in the pre-trial proceedings was not remedied at the trial. The trial court expressly referred to the statement made by the applicant in the inspection record and his subsequent statement. It did not draw any distinction or made any comparison between that statement and the subsequent more detailed statement made after the applicant had been apprised of Article 51 of the Constitution. While it is not the Court's role to examine whether the evidence in the present case was correctly assessed by the national courts, the Court considers that the conviction was based on the applicant's self-incriminating statements. The Court finds it regrettable that the courts did not provide sufficient reasons for dismissing the applicant's arguments challenging the admissibility of the pre-trial statements, especially in the light of the weakness of the other evidence presented by the prosecution at the trial. It was, however, the prosecution's obligation under Russian law to prove the offence of theft on the strength of the other evidence because the CCrP required that a defendant's admission of guilt in the commission of an offence could be used as a basis for criminal charges only if his or her culpability was confirmed by the totality of evidence collected in the case .... The Court cannot but observe that two of the witnesses presented by the prosecution only confirmed the fact of the car inspection and the seizure of the fuel. A third person only testified on the circumstances which were capable of clarifying the reasons for and the purpose of the above inspection.

59. The Court further observes that, contrary to the applicant's allegation, it follows from the trial record that the trial court examined witnesses on behalf of the applicant. However, it rejected their testimony as unreliable on account of the witnesses' close relationship with the applicant. Lastly, it is also noted that the court refused to accept in evidence the invoice which would allegedly exculpate the applicant (see, by contrast, Bykov, cited above, §§ 95 et seq.; and Heglas v. the Czech Republic, no.5935/02, §§ 89 and 90, 1 March 2007). Thus, the Court concludes that the trial court based the conviction of the applicant on the statement that he had given to the police without being informed of his right to not incriminate himself.

60. In the light of the above considerations, given the particular circumstances of the present case and taking the proceedings as a whole, the Court concludes that there has been a violation of Article 6 § 1 of the Convention.

(Redress by retrial with Convention rights respected)

65. The Court also reiterates that when an applicant has been convicted despite an infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position that he would have been in had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if so requested by the person concerned ....
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Fri May 20, 2016 10:33 pm

Summary of the relevant case-law in ALEKSANDR ZAICHENKO v. RUSSIA 39660/02 18/02/2010 and other relevant cases.

1. ECHR review of a case is concerned only with whether or not a Respondent State has respected the provisions of the European Convention on Human Rights and ECHR case-law in its treatment of an applicant; the guilt or innocence of the applicant is not an issue.

2. ECHR examines cases individually with respect to their merits; the details of cases are important; the ECHR considers and seeks to give the appearance of considering the merits impartially and objectively.

3. Access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are truly compelling reasons to restrict this right. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction. Compelling reasons, as found in Ibrahim et al. v. the UK, would be, for example, the threat of a future terrorist attack which could cause mass casualties. Even in that case, the questioning without a lawyer must be restricted to topics such as the identification of future threats, and information gained in such questioning must not be used to prejudice the rights of the accused at trial.

4. The right to silence and the right not to incriminate oneself 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, thereby contributing to the avoidance of miscarriages of justice and to the fulfillment of the aims of Article 6. The right not to incriminate oneself presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in Article 6 § 2 of the Convention. In examining whether a procedure has extinguished the very essence of the privilege against self-incrimination, the Court must examine the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put.

5. The general requirements of fairness contained in Article 6 apply to all criminal proceedings, irrespective of the type of offence at issue. Even persons accused of infamous crimes such as rape, murder, and terrorism are protected under the rights listed in the Convention and detailed in the ECHR case-law, as are those accused of petty theft or making false accusations.

6. A waiver of a right guaranteed by the Convention – in so far as it is permissible – must not run counter to any important public interest, must be established in an unequivocal manner and must be attended by minimum safeguards commensurate to the waiver's importance.... Moreover, before an accused can be said to have impliedly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Thus, a person may not have been considered to have validly waived the right to a lawyer without clear evidence that this was done with full knowledge of the legal consequences and was truly based on the person's will, and not a result of intimidation or threat.

7. If a person is interrogated in police custody, or if the questioned person's freedom of action is significantly restricted, and there is no lawyer present to fairly represent the interests of that person, the statements of the person may not be used to convict him of any crime. This holds true whether or not the statements are considered incriminating statements.

8. Statements made by a person under interrogation was not told of the right to remain silent and warned that the statement could be used against him before the interrogation starts cannot be used to convict him.

9. The Convention is intended to guarantee rights that are practical and effective. Therefore, statements obtained in interrogations that are in reality the questioning of a de facto suspect under the pretense that he is a witness may not be used for conviction. The ECHR will not accept the use statements for conviction obtained from the questioning of a de facto suspect as a witness even if the questioning allegedly satisfies legal formalism or domestic law, and certainly not if there is deception by the authorities.

10. When an applicant has been convicted despite an infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position that he would have been in had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if so requested by the person concerned.
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Re: ECHR: Convention Violations and Case-Law

Postby LondonSupporter » Sat May 21, 2016 2:42 am

Numbers wrote:Summary of the relevant case-law in ALEKSANDR ZAICHENKO v. RUSSIA 39660/02 18/02/2010 and other relevant cases.

1. ECHR review of a case is concerned only with whether or not a Respondent State has respected the provisions of the European Convention on Human Rights and ECHR case-law in its treatment of an applicant; the guilt or innocence of the applicant is not an issue.

2. ECHR examines cases individually with respect to their merits; the details of cases are important; the ECHR considers and seeks to give the appearance of considering the merits impartially and objectively.

3. Access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are truly compelling reasons to restrict this right. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction. Compelling reasons, as found in Ibrahim et al. v. the UK, would be, for example, the threat of a future terrorist attack which could cause mass casualties. Even in that case, the questioning without a lawyer must be restricted to topics such as the identification of future threats, and information gained in such questioning must not be used to prejudice the rights of the accused at trial.

4. The right to silence and the right not to incriminate oneself 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, thereby contributing to the avoidance of miscarriages of justice and to the fulfillment of the aims of Article 6. The right not to incriminate oneself presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in Article 6 § 2 of the Convention. In examining whether a procedure has extinguished the very essence of the privilege against self-incrimination, the Court must examine the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put.

5. The general requirements of fairness contained in Article 6 apply to all criminal proceedings, irrespective of the type of offence at issue. Even persons accused of infamous crimes such as rape, murder, and terrorism are protected under the rights listed in the Convention and detailed in the ECHR case-law, as are those accused of petty theft or making false accusations.

6. A waiver of a right guaranteed by the Convention – in so far as it is permissible – must not run counter to any important public interest, must be established in an unequivocal manner and must be attended by minimum safeguards commensurate to the waiver's importance.... Moreover, before an accused can be said to have impliedly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Thus, a person may not have been considered to have validly waived the right to a lawyer without clear evidence that this was done with full knowledge of the legal consequences and was truly based on the person's will, and not a result of intimidation or threat.

7. If a person is interrogated in police custody, or if the questioned person's freedom of action is significantly restricted, and there is no lawyer present to fairly represent the interests of that person, the statements of the person may not be used to convict him of any crime. This holds true whether or not the statements are considered incriminating statements.

8. Statements made by a person under interrogation was not told of the right to remain silent and warned that the statement could be used against him before the interrogation starts cannot be used to convict him.

9. The Convention is intended to guarantee rights that are practical and effective. Therefore, statements obtained in interrogations that are in reality the questioning of a de facto suspect under the pretense that he is a witness may not be used for conviction. The ECHR will not accept the use statements for conviction obtained from the questioning of a de facto suspect as a witness even if the questioning allegedly satisfies legal formalism or domestic law, and certainly not if there is deception by the authorities.

10. When an applicant has been convicted despite an infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position that he would have been in had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if so requested by the person concerned.


This is an excellent summary of the reasons why the European Court will find in favour of Amanda. I think it should be made more widely available e.g. as the basis of an article in Ground Report. Do you wish to do this, or failing that, would you object if I did?
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sat May 21, 2016 10:19 am

In discussing the violations of the Convention by Italy in this case, the period of time Amanda and Raffeale were deprived of legal counsel during police custody, from their arrest on Nov. 6, 2007 to just before the justification of arrest hearing on Nov. 8, 2007, should be addressed.

As previously briefly mentioned, the case-law on denial of legal counsel during custody includes Dayanan v. Turkey 7377/03 13/10/2009.

The failure of the Italian authorities to allow Amanda and Raffaele to have legal counsel during that period of custody (6 to 8 Nov, 2007) before their arrest hearings was a violation of Convention Articles 6.3c with 6.1, and suggests that the arrest hearings themselves were unfair and thus in violation of the Convention under Article 6.1.

Here is a relevant excerpt:

30. In relation to the absence of legal assistance in police custody, the Court reiterates that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Salduz, cited above, § 51; Poitrimol v. France, 23 November 1993, § 34, Series A no. 277-A; and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008).

31. The Court is of the view that the fairness of criminal proceedings under Article 6 of the Convention requires that, as a rule, a suspect should be granted access to legal assistance from the moment he is taken into police custody or pre-trial detention.

32. In accordance with the generally recognised international norms, which the Court accepts and which form the framework for its case-law, an accused person is entitled, as soon as he or she is taken into custody, to be assisted by a lawyer, and not only while being questioned (for the relevant international legal materials see Salduz, cited above, §§ 37-44). Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.

33. In the present case it is not disputed that the applicant did not have legal assistance while in police custody because it was not possible under the law then in force (see Salduz, cited above, §§ 27 and 28). A systematic restriction of this kind, on the basis of the relevant statutory provisions, is sufficient in itself for a violation of Article 6 to be found, notwithstanding the fact that the applicant remained silent when questioned in police custody.

34. Accordingly, the Court finds that there has been a violation of Article 6 § 3 (c) taken in conjunction with Article 6 § 1.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sat May 28, 2016 7:08 pm

If the Boninsegna motivation report and verdict are indeed final, because there was no appeal from the prosecution within the time limit, Amanda may need to pursue a revision trial at this time to exhaust domestic remedies to correct her wrongful conviction for calunnia against Lumumba, as required by the ECHR.

The Italian procedural law on when a revision trial may be requested is codified in CPP Article 630, paragraph 1a: Revision may be requested if the facts underlying the judgment or the criminal decree of conviction are incompatible with the facts established in another final criminal judgment issued by the ordinary judge or a special judge.

ETA: The claims under Articles 3 and 8 would, however, most likely remain admissible because the revision trial only addresses the soundness or rightfulness of the conviction itself, if I understand correctly.
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Re: ECHR: Convention Violations and Case-Law

Postby LondonSupporter » Thu Jun 09, 2016 3:14 pm

This article is up on Ground Report: http://www.groundreport.com/amanda-knox ... an-rights/
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Re: ECHR: Convention Violations and Case-Law

Postby MichaelB » Thu Jun 09, 2016 7:29 pm

LondonSupporter wrote:This article is up on Ground Report: http://www.groundreport.com/amanda-knox ... an-rights/


Good article and summary fellas. :clap:

Thank you.
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Re: ECHR: Convention Violations and Case-Law

Postby european neighbour » Fri Jun 10, 2016 1:07 am

BTW "importance level three" even is the bigger disgrace. "Level three" means human rights for beginners. But before Boninsegna NOT ONE Italian judge was able to acknowledge how to behave according "primitive" ECHR case law and the Italian constitution.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Fri Jun 10, 2016 5:00 am

european neighbour wrote:BTW "importance level three" even is the bigger disgrace. "Level three" means human rights for beginners. But before Boninsegna NOT ONE Italian judge was able to acknowledge how to behave according "primitive" ECHR case law and the Italian constitution.


I have noticed this, too. Are Italian judges not obligated to enforce the provisions of the Italian Constitution and ECHR case-law? Or do they believe that they and the prosecutors are above the fundamental law of their country?
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Fri Jun 10, 2016 5:22 am

Here is information about a relevant ECHR case, UĞUR v. TURKEY 37308/05 13/01/2015, first brought to my attention in a post on ISF by Diocletus:

Here’s an interesting new case about some youths who were taken into a police station, and without counsel and under duress made false statements about the death of a man who had in fact been killed by the police. In part of the case, the government argued that the applicants were just witnesses (i.e., had no procedural rights), as opposed to “suspects,” who would be entitled to procedural rights. Here’s what the courts said:

Quote:
123. In any event, having regard to the police reports which state that the applicants were “apprehended” (see paragraphs 24 above), the nature of the statements taken from them (see paragraphs 27-28 above), and the fact that swabs were taken from one of them with a view to establishing whether or not he had gunpowder residue on his hands (see paragraph 23 above), coupled with the fact that a prosecutor started an investigation against the second applicant (see paragraph 35 above), the Court considers that the applicants were detained at the police station as suspects.

24. According to another police report drawn up the same morning, six teenagers, including the two applicants, “who had been apprehended in connection with the incident” were “placed in the custody of the police” and taken to Beyoğlu police station at 5.30 a.m. with a view to being transferred to a special police station for minors.

27. In the statements, the applicants were reported to have told the two police officers that they had been walking along the street with a number of their friends when they had seen A.Ö. They had noticed that he was drunk, and had attempted to rob him. However, he had produced a pistol and they had unsuccessfully tried to take it from him. During the scuffle, the pistol had gone off and their friend B.S. had been shot.

28. One of their friends had then pursued the armed man and started hitting him. When his pistol had fallen to the ground, their friend had taken it and shot him in the head. They had then taken B.S. to hospital and had been arrested there by the police.

23. The report also stated that hand swabs had been taken from four individuals with a view to establishing whether or not they had gunpowder residue on their hands. The four individuals included the first applicant who, according to the report, “had been taken in by the police in connection with the incident”.

35. An investigation which had been started by a prosecutor against the second applicant and his neighbour B.S. for the “attempted robbery” of A.Ö. was discontinued on 3 December 2002, because the prosecutor observed that the applicants’ neighbour had been killed by the police officer, and there was no evidence implicating the second applicant in the incident.
Let’s compare this to the situation with Knox:

As to para. 24, Knox maybe wasn’t “apprehended and brought to the police station,” although an order had been given for her apprehension (Giobbi) and she was taken in to an interrogation that she did not volunteer for. Also, she had already been wiretapped and her alibi was under attack.

As to para. 27, just as in Ugur, the police wrote for Knox a false story, which became her statement.

As to para. 23, Knox had previously been fingerprinted. In addition, the police were questioning her alibi and had seized the co-defendants shoes and knife with an aim to matching them to the forensics. The police seized and searched Knox’s cell phone, for which they had previously obtained the records.

As to para. 35, note again that the police were questioning Sollecito about his and Knox’s alibi, and seized his shoes and knife, and utilized all of these things to justify his arrest. Also note that Knox was charged with callunnia . . . which it appears was not a pressure applied to the applicants in Ugur, above.

Oh, and there's also this fun statement in paragraph 120:

Quote:
In this connection, the Court must also emphasise that the characterisation or lack of characterisation given by a State to a factual situation cannot decisively affect the Court’s conclusion as to the existence of a deprivation of liberty (see Creangă v. Romania [GC], no. 29226/03, § 92, 23 February 2012). Thus, the fact that both the national authorities and subsequently the respondent Government considered that the applicants had not been arrested but had been kept in a police station as “statement makers” or as witnesses does not automatically mean that they were not deprived of their liberty since, regardless of its purpose, the deprivation of liberty must be lawful.


I posted on another part of the judgment:

Here's another quote from Ugur v Turkey. It was written in context of the police who were accused of mistreating the applicant and others, but it could also apply to a prosecutor like Mignini, who was the defendant in a case in which he was charged with misconduct (abuse of power) during the pre-trial and first trial of Amanda Knox and Raffaele Sollecito.

Quote:
108. At this juncture the Court also reiterates the importance of the suspension from duty of an agent under investigation or on trial, as well as his dismissal if he is convicted, (see, inter alia, Abdülsamet Yaman, cited above, § 55). The importance of doing so is well evidenced in the present application, where the police officers who ill-treated the applicants – in particular police chief K.Ş.S. – used their powers to stall the investigation by failing to reply to the prosecutor’s requests for a long period of time and by putting pressure on the applicants.
Expert witness testimony must be the product of reliable principles and methods. {Paraphrase of Fed. Rules of Evidence 702c}
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Fri Jun 10, 2016 5:36 am

It may be of interest to examine an example of a friendly settlement. The following text is from YILDIZ v. TURKEY 28308/95 22/04/2003; the applicant alleged he, along with other prisoners, had been assaulted (beaten) by guards when he was in prison:

19. On 5 February 2003 the Court received the following declaration from the Government:

“1. The Government regret the occurrence, as in the present case, of individual cases of ill-treatment by the authorities of persons detained notwithstanding existing Turkish legislation and the resolve of the Government to prevent such actions. It is accepted that the recourse to ill-treatment of detainees constitutes a violation of Article 3 of the Convention. The Government undertake to issue appropriate instructions and adopt all necessary measures to ensure that the prohibition of such acts and the obligation to carry out effective investigations are respected in the future. The Government refer in this connection to the commitments which they undertook in the Declaration agreed on in Application no. 34382/97 and reiterate their resolve to give effect to those commitments. They note that new legal and administrative measures have been adopted which have resulted in a reduction in the occurrence of ill-treatment in circumstances similar to those of the instant case as well as more effective investigations.

2. I declare that the Government of the Republic of Turkey offer to pay ex gratia to the applicant, Mr Zeki Yıldız, an all-inclusive amount of 30,500 EUR (thirty thousand five hundred euros), with a view to securing a friendly settlement of his application registered under no. 28308/95. This sum, which is to cover any pecuniary and non-pecuniary damage as well as legal costs and expenses connected with the case, shall be free of any tax that may be applicable and be paid in euros to a bank account named by the applicant and/or his duly authorised representative. This sum shall be payable within three months from the date of the notification of the judgment delivered by the Court pursuant to Article 39 of the European Convention on Human Rights. This payment will constitute the final settlement of the case. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay, until settlement, simple interest on the amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

3. The Government consider that the supervision by the Committee of Ministers of the Council of Europe of the execution of Court judgments concerning Turkey in this and similar cases is an appropriate mechanism for ensuring that improvements will continue to be made in this context. To this end, necessary co-operation in this process will continue to take place.

4. Finally, the Government undertake not to request the reference of the case to the Grand Chamber pursuant to Article 43 § 1 of the Convention after the delivery of the Court’s judgment.”

20. On 27 November 2002 the Court received the following declaration signed by the applicants’ representative:

“1. In my capacity as the representative of the applicant, Mr Zeki Yıldız, I have taken cognisance of the terms of the declaration made by the Government of the Republic of Turkey as well as the undertakings contained in that declaration, including to pay the applicant an all-inclusive amount of 30,500 EUR (thirty thousand five hundred euros) with a view to concluding a friendly settlement of his case that originated in application no. 28308/95.

2. Having been duly consulted, the applicant accepts the terms of the above-mentioned declaration and, in consequence, waives all other claims against the Republic of Turkey in respect of the matters that were at the origin of the application. We declare that the case has been settled finally and we undertake not to request the reference of the case to the Grand Chamber pursuant to Article 43 § 1 of the Convention after the delivery of the Court’s judgment.”

21. The Court takes note of the agreement reached between the parties (Article 39 of the Convention). It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court).

22. Accordingly, the case should be struck out of the list.
Expert witness testimony must be the product of reliable principles and methods. {Paraphrase of Fed. Rules of Evidence 702c}
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Re: ECHR: Convention Violations and Case-Law

Postby Kauffer » Fri Jun 10, 2016 5:40 am

Numbers wrote:
european neighbour wrote:BTW "importance level three" even is the bigger disgrace. "Level three" means human rights for beginners. But before Boninsegna NOT ONE Italian judge was able to acknowledge how to behave according "primitive" ECHR case law and the Italian constitution.


I have noticed this, too. Are Italian judges not obligated to enforce the provisions of the Italian Constitution and ECHR case-law? Or do they believe that they and the prosecutors are above the fundamental law of their country?


They are so obligated. It is important to note that ECHR jurisprudence is superior to ordinary law in Italy, occupying a position effectively equivalent to constitutional principles.

Which makes the Bruno/Marasca commentary on the case before the ECtHR particularly disturbing.

The Boninsegna MR stands in opposition to the Bruno MR. It is acutely embarrassing for the Italian judiciary and I have no doubt they are going to be called out for this nonsense.

The constitutional court in Italy, ultimately, is going to have to sort out this mess and possibly we shall see general measures applied by the Council of Europe requiring that all Italian judges are taught a course in constitutional law that mere undergraduates in the universities would regard as perfectly straightforward.
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Re: ECHR: Convention Violations and Case-Law

Postby Kauffer » Mon Jun 13, 2016 9:24 am

I'm not sure if everyone has seen this document from the Council of Europe. It lays out a change of focus in the approach of the COE with regard to the re-opening of domestic proceedings, including in the event of Article 6 judgements. As well as recommending, in some case, the COE will ask the successful applicant whether she wishes to have proceedings re-opened as "individual measures" to be taken by Member states towards achieving restitutio in integrum.

Here's an extract:

"The reopening of proceedings has been held by the European Court to be a measure as close to restitutio in integrum as possible. The Court has gradually taken the further step of not simply contenting itself with establishing, after the event, the beneficial effects of the reopening of domestic proceedings, but of recommending this measure prior to the event as offering the most appropriate remedy or an appropriate way of redressing the violation. This is particularly the case in proceedings where the right to an independent and impartial tribunal has been violated. In the Öcalan v. Turkey case, the Grand Chamber clearly endorsed this “general approach”.The same applies to conviction of an applicant after an unfair trial. The most recent case-law has innovated further, showing a tendency on the Court’s part to compel states to reopen proceedings on certain conditions (option in domestic law, applicant’s request, most effective means of achieving restitutio in integrum, respect for procedural safe- guards during new proceedings). In the operative part of its Claes and others v. Belgium judgment, where it found that there had been a violation of the right to a tribunal established by law, the Court gave the state the alternative of reopening the proceedings or paying a predetermined amount in just satisfaction. This alternative may be explained by the fact that it was found to be below the threshold of gravity of the consequences foreseen by a reopening of the case. In its Lungoci v. Romania judgment, concerning a similar violation of the right of access to a court, after noting in the reasons for the decision (§56) that the reopening of proceedings was a possibility, the Court held (operative part, 3.a) that the state should ensure that the proceedings were reopened if the applicant so desired, whilst at the same time requiring the payment of €5 000 for non-pecuniary damage.

P 18-24

http://www.echr.coe.int/LibraryDocs/DG2 ... ES-19(2008
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Thu Jun 16, 2016 8:11 am

ECHR Case-Law on the Right to a Lawyer From the First Interrogation and in Custody

Case-Law excerpts included in this post; relevance

SÎRGHI v. ROMANIA 19181/09; 2016 judgment showing that case-law remains applicable including to those not is special classes such as "minors".

IBRAHIM AND OTHERS v. THE UNITED KINGDOM 50541/08; lists many of the applicable cases; provides an outline summarizing how the ECHR evaluates these cases; is itself a counter-example, showing that under certain critical circumstances (such as prevention of mass-casualties from terrorism) and where defense rights are respected by the prosecution not introducing statements from the interviews at trial, police interviews without a lawyer are allowed.

SALDUZ v. TURKEY [GC] 36391/02; the first absolute statement of the general principle that a lawyer for the defense must be present from the first interrogation if statements from the interrogation are to be used by the prosecution in a trial. The ECHR intent includes that the presence of the lawyer will prevent any coercion or mistreatment of the person interrogated.

PANOVITS v. CYPRUS 4268/04; waivers of the right to a lawyer to be considered valid must be given by the suspect in full knowledge of the consequences; a second statement obtained in violation of the right to silence or without legal counsel cannot validate the use of an earlier statement likewise obtained in violation of the right to silence or without legal counsel.

DAYANAN v. TURKEY 7377/03; established that a person in custody must have a defense lawyer from the first moment of being deprived of liberty, in order for the lawyer to assist in every function of defense, including support of the suspect/accused.

ALEKSANDR ZAICHENKO v. RUSSIA 39660/02; established that even seemingly non-incriminating statements from an interrogation or interview conducted without a lawyer may not be used.




SÎRGHI v. ROMANIA 19181/09 24/05/2016 (Translated from the French using Google Translate)

39. The Court reiterates that while the main aim of Article 6, for criminal proceedings, is to ensure a fair trial by a "tribunal" competent to determine the "appropriateness of prosecution", it may be relevant before the case is sent for trial if and to the extent that the initial failure to comply presents a serious risk to the fairness of the trial (Salduz v. Turkey [GC], No. 36391/02, § 50, ECHR 2008, and Panovits v. Cyprus, No. 4268/04, § 64, 11 December 2008). In addition, the right contained in paragraph 3 c) of Article 6 is one factor among others in the concept of a fair trial in criminal proceedings contained in paragraph 1 (Imbrioscia v. Switzerland, 24 November 1993, § 37, 24/05/2016 Series A No. 275, and AT v. Luxembourg, No. 30460/13, § 62, 9 April 2015).

40. The right of an accused to be effectively defended by a lawyer is one of the fundamental attributes of a fair trial (Krombach v. France, No. 29731/96, § 89, ECHR 2001-II). For it to remain sufficiently "practical and effective", the right to a fair trial under Article 6 § 1 implies a rule that access to a lawyer from the first police interrogation, except if demonstrated in the light of the particular circumstances of the case that there are compelling reasons to restrict this right. The Court stated that even in such a case, the refusal of access to a lawyer should not unduly prejudice the rights under Article 6 and in principle irretrievably prejudices the rights of the defense when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (Salduz, cited above, § 55). The court found a violation of Article 6 §§ 1 and 3 c) notwithstanding that the applicant had subsequently benefited from the assistance of a lawyer and an adversarial procedure, having particular regard to the fact that the restriction on the right of access to a lawyer was a matter of a systematic application of legal provisions (Salduz, cited above, §§ 56 and 61).

41. The fairness of criminal proceedings generally requires, for the purposes of Article 6 of the Convention, that the suspect enjoys the opportunity to be assisted by a lawyer from the moment of his in custody custody or in remand. An accused shall, once he is deprived of liberty, benefit from the assistance of a lawyer, irrespective of interrogations he underwent (Dayanan v. Turkey, No. 7377/03, §§ 31-32, 13 October 2009). The Court emphasized in this regard that the fairness of the proceedings requires the accused to get the whole range of interventions that are specific to the counsel (Dvorski v. Croatia [GC], No. 25703/11, § 78, 2015 ECHR). Furthermore, an accused often finds himself in a particularly vulnerable situation in the investigation stage, which is the more consequential than the legislation on criminal procedure tends to become increasingly complex, particularly concerning the rules governing the collection and use of evidence. In most cases, this particular vulnerability can not be compensated adequately by the counsel, whose work includes contributing to the respect for the right of an accused not to incriminate himself ( Pavlenko v. Russia, No. 42371/02, § 101, 1 April 2010).

42. The Court has had occasion to specify that while a restriction on the right to benefit from the assistance of a lawyer from the outset of police custody or pre-trial detention may in certain circumstances be justified and be compatible with the requirements of this provision, the fact that its exercise is impossible because of a systematic rule of national law is inconsistent with the right to a fair trial (Simons v. Belgium (dec.), No. 71407/10, § 31, August 28, 2012, and Navona and others v. Monaco, our 62880/11, 62892/11 and 62899/11, § 80, 24 October 2013).


IBRAHIM AND OTHERS v. THE UNITED KINGDOM 50541/08 16/12/2014
191. The Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Imbrioscia v. Switzerland, 24 November 1993, § 38, Series A no. 275; Taxquet v. Belgium [GC], no. 926/05, § 84, 16 November 2010; and Bandaletov v. Ukraine, no. 23180/06, § 54, 31 October 2013). The guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair hearing set forth in Article 6 § 1 which must be taken into account in that evaluation (see Imbrioscia, cited above, § 37; Gäfgen v. Germany [GC], no. 22978/05, § 169, ECHR 2010; Sakhnovskiy v. Russia [GC], no. 21272/03, § 94, 2 November 2010; and Bandaletov, cited above, § 54). Their intrinsic aim is to contribute to ensuring the fairness of the criminal proceedings as a whole (see Mayzit v. Russia, no. 63378/00, § 77, 20 January 2005; and Seleznev v. Russia, no. 15591/03, § 67, 26 June 2008). But they are not an end in themselves: compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole, and not on the basis of the isolated consideration of one particular aspect or incident (see Pishchalnikov v. Russia, no. 7025/04, § 64, 24 September 2009. See also Mayzit, cited above, § 77; and Seleznev, cited above, § 67).
192. The right to legal assistance contributes in particular to the protection of the accused against abusive coercion on the part of the authorities. It is a fundamental safeguard against ill-treatment (Salduz, cited above, §§ 53-54). Where an accused denied prompt legal assistance alleges improper conduct, notably coercion or ill-treatment, by the police during interrogation, the most careful scrutiny by the domestic tribunals and by this Court is required.
193. The Court explained in John Murray, cited above, § 63, that where access to a lawyer has been deliberately restricted at the initial stages of police interrogation, the question is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing (see also Pishchalnikov, cited above, § 67). It stated that since national laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings, Article 6 will normally require that the accused be afforded a lawyer from these initial stages (see also Salduz, cited above, § 52). However, the Court had always recognised that the right to legal assistance could be subject to restrictions for good cause (see John Murray, cited above, § 63; Magee, cited above, § 41; Brennan v. the United Kingdom, no. 39846/98, § 45, ECHR 2001-X; and Pishchalnikov, cited above, § 67). At § 55 of its judgment in Salduz, cited above, the Grand Chamber set out the applicable principle as follows:
“... Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 ... The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.”
194. It can be seen from Salduz that in assessing the compatibility with Article 6 of instances of police interrogation without legal assistance, the Court considers two separate but linked matters. The first is whether there were “compelling reasons” to delay access to legal assistance. A temporary restriction on access to legal advice will not, of itself, fall foul of Article 6 §§ 1 or 3 (c) where this test is satisfied.
195. However, applicants rarely complain of restrictions in respect of legal assistance in isolation. A witness or suspect interviewed by the police and released without charge has little interest in pursuing complaints about inadequate procedural guarantees. The alleged unfairness generally arises because statements made during police interrogation without legal advice are subsequently admitted as evidence in criminal proceedings. Thus, the second aspect of the Salduz principle holds that, even where a restriction on access to legal advice was justified for compelling reasons, and thus itself compatible with Article 6, it may nonetheless be necessary, in the interests of fairness, to exclude from any subsequent criminal proceedings any statement made during a police interview in the absence of a lawyer. The question, at this stage of the Court’s assessment, is whether the admission of a statement made without access to legal assistance caused undue prejudice to the applicant in the criminal proceedings, taking into account the fairness of the proceedings as a whole.
196. In this respect, the general principles applied by the Court to questions of admissibility of evidence in criminal proceedings are relevant. As the Court has said on many occasions, admissibility of evidence is a matter for regulation by national law and the national courts and this Court’s only concern is to examine whether the proceedings have been conducted fairly (see Panovits v. Cyprus, no. 4268/04, § 81, 11 December 2008; Gäfgen, cited above, § 162, and references therein). In making this evaluation the Court looks at the proceedings as a whole, having regard to whether the rights of the defence have been respected (see, for example, Bykov v. Russia [GC], no. 4378/02, § 90, 10 March 2009; Gäfgen, cited above, § 164; Lutsenko v. Ukraine, no. 30663/04, § 42, 18 December 2008; and Aleksandr Zaichenko, cited above, § 57). Pre-trial statements obtained in the absence of procedural guarantees should be treated with caution (see Lutsenko, cited above, § 51; and Zaichenko, cited above, § 56). When deciding whether the admission of a statement made without legal assistance was compatible with Article 6, the Court will examine, in so far as relevant to the case before it:
(a) the general legislative framework applicable and any safeguards it contains (see, generally, John Murray, cited above, § 66; Salduz, cited above, § 56; and Yoldaş v. Turkey, no. 27503/04, § 50, 23 February 2010);
(b) the quality of the evidence, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (see Panovits, cited above, § 82; Lutsenko, cited above, § 48; and Aleksandr Zaichenko, cited above, § 57); in this respect, improper conduct, notably coercion or ill-treatment, during interrogation and vulnerability of suspects are relevant factors (see paragraph 192 above);
(c) whether the statement was promptly retracted and the admissions made in it consistently denied, particularly once legal advice had been obtained (see Lutsenko, cited above, § 51; Yoldaş, cited above, § 53; and Bandaletov, cited above, § 67);
(d) the procedural safeguards applied during the criminal proceedings, and in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use (see Panovits, cited above, § 82; Lutsenko, cited above, § 48; and Aleksandr Zaichenko, cited above, § 57);
(e) the strength of the other evidence in the case (see Salduz, cited above, § 57; Yoldaş, cited above, § 53; and Aleksandr Zaichenko, cited above, § 58-59).


SALDUZ v. TURKEY [GC] 36391/02 27/11/2008

50. The Court reiterates that, even if the primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 thereof – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see Imbrioscia, cited above, § 36). As the Court has already held in its previous judgments, the right set out in Article 6 § 3 (c) of the Convention is one element, among others, of the concept of a fair trial in criminal proceedings contained in Article 6 § 1 (see Imbrioscia, cited above, § 37, and Brennan, cited above, § 45).
51. The Court further reiterates that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Poitrimol v. France, 23 November 1993, § 34, Series A no. 277-A, and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008). Nevertheless, Article 6 § 3 (c) does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court’s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial. In this respect, it must be remembered that the Convention is designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” and that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused (see Imbrioscia, cited above, § 38).
52. National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances (see John Murray, cited above, § 63; Brennan, cited above, § 45; and Magee, cited above, § 44).
53. These principles, outlined in paragraph 52 above, are also in line with the generally recognised international human rights standards (see paragraphs 37‑42 above) which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. They also contribute to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused.
54. In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial (see Can v. Austria, no. 9300/81, Commission’s report of 12 July 1984, § 50, Series A no. 96). At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006‑IX, and Kolu v. Turkey, no. 35811/97, § 51, 2 August 2005). Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination (see, mutatis mutandis, Jalloh, cited above, § 101). In this connection, the Court also notes the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (see paragraphs 39-40 above), in which the CPT repeatedly stated that the right of a detainee to have access to legal advice is a fundamental safeguard against ill-treatment. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies.
55. Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” (see paragraph 51 above), Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 (see, mutatis mutandis, Magee, cited above, § 44). The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.


PANOVITS v. CYPRUS 4268/04 11/12/2008

64. At the outset the Court observes that, even if the primary purpose of Article 6, as far as criminal matters are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Article 6 – especially paragraph 3 – may be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its requirements (see Öcalan v. Turkey [GC], no. 46221/99, § 131, ECHR 2005‑IV, and Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275). The manner in which Article 6 §§ 1 and 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case. In order to determine whether the aim of Article 6 – a fair trial – has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case (Imbrioscia, cited above, § 38).
65. Moreover, the Court reiterates that the right to silence and the right not to incriminate oneself 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, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 (see John Murray v. the United Kingdom, 8 February 1996, § 45, Reports of Judgments and Decisions 1996‑I, and Funke v. France, 25 February 1993, § 44, Series A no. 256‑A). The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, inter alia, Saunders v. the United Kingdom, 17 December 1996, § 68, Reports 1996‑VI; Heaney and McGuinness v. Ireland, no. 34720/97, § 40, ECHR 2000‑XII; J.B. v. Switzerland, no. 31827/96, § 64, ECHR 2001-III; and Allan v. the United Kingdom, no. 48539/99, § 44, ECHR 2002-IX). In this sense the right is closely linked to the presumption of innocence contained in Article 6 § 2 of the Convention.
66. As regards the applicant’s complaints which concern the lack of legal consultation at the pre-trial stage of the proceedings, the Court observes that the concept of fairness enshrined in Article 6 requires that the accused be given the benefit of the assistance of a lawyer already at the initial stages of police interrogation. The lack of legal assistance during an applicant’s interrogation would constitute a restriction of his defence rights in the absence of compelling reasons that do not prejudice the overall fairness of the proceedings.
….
82. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence have been respected. It must be examined in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubts on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see, inter alia, Khan, cited above, §§ 35, 37, and Allan, cited above, § 43).
83. As for the use of evidence obtained in breach of the right to silence and the privilege against self-incrimination, the Court reiterates that these are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 (see paragraph 65 above).
84. Turning to the facts of the present case, the Court repeats its findings of a violation of the applicant’s rights of defence at the pre-trial stage of the proceedings due to the fact that, whilst being a minor, his questioning had taken place in the absence of his guardian and without him being sufficiently informed of his right to receive legal representation or of his right to remain silent. The Court notes that the applicant’s confession obtained in the above circumstances constituted a decisive element of the prosecution’s case against him that substantially inhibited the prospects of his defence at trial and which was not remedied by the subsequent proceedings.
85. The Court notes that in addition to the applicant’s confession his conviction was supported by his second statement admitting that he had kicked the victim, a testimony reporting the applicant’s statement that he had been involved in a serious fight with the victim and various testimonies confirming that the applicant had been drinking with the victim on the evening the victim died and that his clothes had been covered in mud in the early hours of the following morning. There was also medical evidence confirming that the cause of the victim’s death was multiple and violent blows. While it is not the Court’s role to examine whether the evidence in the present case was correctly assessed by the national courts, the Court considers that the conviction was based to a decisive extent on the applicant’s confession, corroborated largely by his second statement. It considers that the extent to which the second statement made by the applicant was tainted by the breach of his rights of defence due to the circumstances in which the confession had been taken was not addressed by the trial court and remains unclear. Moreover, the Court observes that having regard to the Assize Court’s acceptance of the applicant’s first statement, it appears that it would have been futile for him to contest the admissibility of his second statement.
86. In the light of the above considerations, the Court concludes that there has been a violation of Article 6 of the Convention because of the use in trial of the applicant’s confession obtained in circumstances which breached his rights to due process and thus irreparably undermined his rights of defence.


DAYANAN v. TURKEY 7377/03 13/10/2009

30. In relation to the absence of legal assistance in police custody, the Court reiterates that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Salduz, cited above, § 51; Poitrimol v. France, 23 November 1993, § 34, Series A no. 277-A; and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008).
31. The Court is of the view that the fairness of criminal proceedings under Article 6 of the Convention requires that, as a rule, a suspect should be granted access to legal assistance from the moment he is taken into police custody or pre-trial detention.
32. In accordance with the generally recognised international norms, which the Court accepts and which form the framework for its case-law, an accused person is entitled, as soon as he or she is taken into custody, to be assisted by a lawyer, and not only while being questioned (for the relevant international legal materials see Salduz, cited above, §§ 37-44). Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.


ALEKSANDR ZAICHENKO v. RUSSIA 39660/02 18/02/2010

36. The Court reiterates that Article 6 – especially paragraph 3 – may be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its requirements (see Öcalan v. Turkey [GC], no. 46221/99, § 131, ECHR 2005‑IV, and Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275). The manner in which Article 6 §§ 1 and 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case. In order to determine whether the aim of Article 6 – a fair trial – has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case (Imbrioscia, cited above, § 38).
37. In Salduz v. Turkey [GC] (no. 36391/02, §§ 55, 27 November 2008) the Court held that as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (ibid, and more recently, Çimen v. Turkey, no. 19582/02, §§ 26-27, 3 February 2009).
38. The Court also reiterates that the right to silence and the right not to incriminate oneself 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, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 (see Bykov v. Russia [GC], no. 4378/02, § 92, ECHR 2009‑..., with further references). The right not to incriminate oneself presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, inter alia, J.B. v. Switzerland, no. 31827/96, § 64, ECHR 2001-III). In this sense the right is closely linked to the presumption of innocence contained in Article 6 § 2 of the Convention. In examining whether a procedure has extinguished the very essence of the privilege against self-incrimination, the Court must examine the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put (ibid.).
39. The general requirements of fairness contained in Article 6 apply to all criminal proceedings, irrespective of the type of offence at issue. Public-interest concerns cannot justify measures which extinguish the very essence of an applicant's defence rights, including the privilege against self-incrimination guaranteed by Article 6 of the Convention (see Bykov, cited above, § 93).
40. Lastly, the Court reiterates that a waiver of a right guaranteed by the Convention – in so far as it is permissible – must not run counter to any important public interest, must be established in an unequivocal manner and must be attended by minimum safeguards commensurate to the waiver's importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-...). Moreover, before an accused can be said to have impliedly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (see Talat Tunç v. Turkey, no. 32432/96, § 59, 27 March 2007, and Jones v. the United Kingdom (dec.), no. 30900/02, 9 September 2003).
….

54. Bearing in mind the concept of fairness in Article 6, the Court considers that the right not to incriminate oneself cannot reasonably be confined to statements of admission of wrongdoing or to remarks which are directly incriminating (see Saunders, cited above, § 71). Testimony obtained under compulsion which appears on its face to be of a non-incriminating nature - such as exculpatory remarks or mere information on questions of fact - may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial or to otherwise undermine his credibility (ibid).
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Thu Jun 30, 2016 9:38 am

Of interest: the ECHR Grand Chamber will present a judgment in a case in which a respondent State, Latvia, acknowledged a violation of Article 3 in an ECHR case but the domestic authorities refused to reopen criminal proceedings against the applicant.

The European Court of Human Rights will be delivering a Grand Chamber judgment1 in the case of
Jeronovičs v. Latvia (application no. 44898/10) at a public hearing on 5 July 2016 at 2.30 p.m. in the Human Rights Building, Strasbourg.
The case primarily concerns the national authorities’ refusal to reopen the criminal proceedings
relating to Mr Jeronovičs’s ill-treatment, following a unilateral declaration in which the Government
had acknowledged, among other breaches, a violation of Article 3 of the Convention.


Here is the Communication on the case (from 2010):

SECOND SECTION

Application no. 44898/10
Viktors JERONOVIČS
against Latvia
lodged on 26 July 2010

The facts and complaints in this case have been summarised in the Court’s decision on admissibility, which is available in HUDOC.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all domestic remedies with regard to his complaint about the refusal of the domestic authorities to reopen the criminal proceedings concerning the investigation of his ill-treatment by the police officers?

2. In the light of the text of the Government’s unilateral declaration, as accepted by the Court on 10 February 2009 in the case Jeronovičs v. Latvia, no. 547/02, did the refusal of the Prosecutor’s Office to reopen the criminal proceedings in relation to the applicant’s ill-treatment constitute a violation of the State’s procedural obligations enshrined by Article 3 of the Convention?

3. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention?
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Tue Jul 05, 2016 4:07 pm

A recent ECHR judgment in which the ECHR finds that a conviction is unfair because of the reasoning of the domest court judgment is arbitrary. The ECHR considers arbitrary reasoning as a violation of Convention Article 6.1 when there is a conviction that relies on reasoning that ignores or does not meaningfully evaluate a key defense argument (§ 102, 107) or that otherwise does not convince the ECHR in its role as an objective legal observer (§ 108).

Excerpts:

TCHANKOTADZE v. GEORGIA 15256/05 21/06/2016

52. ...The applicant concluded [in his appeal to the highest domestic court of appeals] that the reasoning given by the lower court to prove his guilt had been manifestly insufficient and arbitrary.
….
102. Although it is not the Court’s function to deal with errors of fact or law allegedly committed by national courts (see Tejedor García v. Spain, 16 December 1997, § 31, Reports of Judgments and Decisions 1997‑VIII; and Buzescuv. Romania, no. 61302/00, § 63, 24 May 2005), it still reiterates that according to its established case-law, reflecting a principle linked to the proper administration of justice under Article 6 § 1 of the Convention, the judgments of courts and tribunals should adequately state the reasons on which they are based, and which should be void of manifest arbitrariness, in order to show that the parties were duly heard and ensure public scrutiny of the administration of justice (see Taxquet v. Belgium [GC], no. 926/05, § 91, ECHR 2010; Salov v. Ukraine, no. 65518/01, §§ 89-92, ECHR 2005‑VIII (extracts), Jgarkava v. Georgia, no. 7932/03, § 71, 24 February 2009; and Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001).
103. Admittedly, Article 6 § 1 cannot be understood as requiring a detailed answer to every argument raised by the parties, and the question whether a court has failed to fulfil its obligation to state reasons can only be determined in the light of the circumstances of a particular case (see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303-A, Suominen v. Finland, no. 37801/97, § 36, 1 July 2003; and Boldea v. Romania, no. 19997/02, § 30, 15 February 2007). However, even though a domestic court has a certain margin of appreciation when choosing arguments in a particular case and admitting evidence in support of the parties’ submissions, the injured party can expect a specific and express reply from the court to those submissions which are decisive for the outcome of the proceedings in question (see Hiro Balani v. Spain, 9 December 1994, §§ 27‑28, Series A no. 303‑B; Grădinar v. Moldova, no. 7170/02, §§ 107‑108, 8 April 2008; and Gheorghe v. Romania, no. 19215/04, § 43, 15 March 2007).
107. The Court observes that a clarification of all the above-mentioned factual and legal aspects was indispensable for the purposes of establishing the applicant’s guilt in relation to both episodes. However, despite the fact that the applicant duly voiced all the relevant arguments before the domestic authorities (see paragraphs 28, 30, 43-44, 50 and 52 above), the domestic courts manifestly omitted to give them any meaningful consideration in their decisions. Indeed, it is irregular that none of the three judicial instances attempted in their decisions to have a discussion about the correlation between the applicant’s actions, what exactly was said in the Constitutional Court’s judgment of 10 January 2003 and what the relevant statutory law was in the immediate aftermath of that constitutional judgment.
108. The foregoing considerations are sufficient for the Court to conclude that the domestic courts gave no reasoned consideration to the above-mentioned, significant aspects of the criminal case directed against him. Those aspects could have had decisive implications for the determination of the applicant’s guilt (compare Salov, cited above, § 92, Grădinar, cited above, §§ 114 and 115; and Gheorghe, cited above, § 50). The resultant incongruity renders the applicant’s conviction for abuse of official authority far from being convincingly determined from the standpoint of an objective legal observer, such as the Court. What is at stake in the present case is not the applicant’s individual criminal responsibility or the establishment of the elements of the offence, matters which are exclusively within the domestic courts’ domain. Rather, the situation, prompted by the absence of sufficient reasons in the decisions of the domestic courts, is that of incomprehension for the Court as to why the applicant’s acts – the collection of the fee on the basis of service agreements and the sub-legislative legal act – were described as criminal at all. In other words, the applicant cannot be said to have had the benefit of fair proceedings in so far as the criminal law – notably, the scope of the offence of abuse of official authority prosecuted under Article 332 of the Criminal Code – was inexplicably and thus arbitrarily construed to his detriment by the domestic courts.
109. There has accordingly been a violation of Article 6 § 1 of the Convention.
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Re: ECHR: Convention Violations and Case-Law

Postby european neighbour » Thu Jul 07, 2016 8:20 am

Apparently Cassazione doesn't obey Strasbourg:
http://www.ansa.it/legalita/rubriche/cr ... 59815.html
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Thu Jul 07, 2016 6:47 pm

european neighbour wrote:Apparently Cassazione doesn't obey Strasbourg:
http://www.ansa.it/legalita/rubriche/cr ... 59815.html


Google translation:
Contrada, no to 'review of sentence'
Cassation appeal inadmissible despite ruling Strasbourg

The Supreme Court declared "inadmissible" the appeal of Bruno Contrada against the final sentence for collusion with the Mafia made by the Supreme Court in 2007 and disputed by his defense following last April's judgment by which the Court of Strasbourg had 'censored 'sentenced to 10 years' imprisonment imposed on the former 007. the defense had resorted to "clerical error". The hearing took place yesterday behind closed doors before the Second Criminal Section and the pg had requested the rejection of the appeal of Contrada.

In particular, the Court of Strasbourg, according to what the defense of Contrada, last April had deemed "unfair" the condemnation of Contrada for collusion noting that "this type of offense was built later to the facts" that date back to the years 1979-1988, while the external competition was set in the early 90s.

The hearing took place yesterday behind closed doors before the Second Criminal Section and the pg had requested the rejection of the appeal of Contrada. The declaration of inadmissibility of the appeal, explain sources of the defense, indicating that it was not 'viable' the road of '' the judgment correction with the use of "material error". Yesterday the appeal was presented [?] by the lawyer Massimo Krogh.


Background: Contrada was a high-ranking police officer who provided information on confidential police activity to an organized crime group (Mafia or Mafia-type). He was was finally convicted on this charge. However, at the time he conducted his activity, it was not defined as a crime in the Italian Criminal Code. Therefore, the ECHR found that the conviction was unfair, a violation of Convention Article 7, No punishment without law (no punishment under retroactive or ex post facto law). The Italian Constitutional Court, in its judgment number 113/2011, decided that a convicted person may request a revision trial when proceedings must be reopened in accordance with a final judgment of the ECHR.

The ECHR case is: Contrada v. Italy (No. 3) 66655/13 14 April 2015 (available in French and Italian)
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Fri Jul 08, 2016 2:04 pm

On a few occasions in this forum or on ISF, I have been asked if there are not counter-examples to the ECHR case-law I have presented. That case-law strongly supports, as I understand it, the proposition that the ECHR will rule that Italy violated Amanda Knox's rights under the Convention, for example, under Articles 6.3c with 6.1 (denial of a lawyer during interrogation and for several days after arrest, with use of statements made by the questioned person, suspect or accused during that period to convict her, thus resulting in an unfair trial). There can be no credible dispute that Knox did not have the counsel of a lawyer during that period due to decisions of the Italian authorities, and there is no evidence of her knowing waiver of the right to a lawyer.

The ECHR case-law relating to violations of Articles 6.3c with 6.1 include Salduz v. Turkey (denial of lawyer during interrogation followed by conviction using statements made during the interrogation) and Dayanan v. Turkey (denial of lawyer during custody, in accordance with domestic law, followed by conviction, even when the right to remain silent was exercised).

A partial counter-example to Dayanan is the Chamber judgment in the case of SIMEONOVI v. BULGARIA 21980/04 20/10/2015. That judgment includes the following conclusion:

116. The Court accordingly finds that the fact that the applicant was not assisted by a lawyer for the first three days of his detention did not diminish his right to defend himself effectively in the framework of the criminal proceedings. His right not to incriminate himself was respected and the fairness of the criminal proceedings was properly ensured. There was therefore no violation of Article 6 § 3 c) taken in conjunction with Article 6 § 1 of the Convention.


The reasons the Chamber gives for its conclusion are the following:

111. The Court observes at the outset that a distinction must be made between the present case and the case of Dayanan, cited above, inasmuch as, unlike Turkish legislation at the material time, the relevant Bulgarian legislation did not restrict the right of detainees to be assisted by lawyers of their choice as from the time of their arrest. Section 70 [4] of the former Law on the Interior Ministry guaranteed the applicant’s access to a lawyer as from the time of his arrest by the police on 3 October 1999, and Article 73 § 1 of the former Code of Criminal Procedure extended the same guarantee to the applicant’s detention as ordered on 4 October 1999 by the preliminary investigation authorities (see paragraphs 52 and 53 above). Those rules were not subject to derogation.

112. The parties agreed that the applicant nonetheless did not actually benefit from this legal safeguard. The Government submitted that the applicant had not asked to consult a lawyer during that period (see paragraph 105 above). The applicant stated the opposite (see paragraph 103 above). The Court is not in a position to determine whether the fact that the applicant had no contact with a lawyer before 6 October 1999 was due to his own passivity or, as he would appear to claim, to the authorities’ mala fide. However that may be, the Court considers that it must now ascertain, in the light of its established case-law, particularly the principles set out in its Salduz judgment, cited above, whether the fact complained of by the applicant irremediably diminished the fairness of the criminal proceedings as a whole.

113. The Court first of all observes that no case paper indicates that the applicant was questioned during the first three days of his detention in the absence of a lawyer (see, by contrast, Salduz, cited above, § 14, and Adamkiewicz v. Poland, no. 54729/00, § 87, 2 March 2010). All his interrogations by the authorities responsible for conducting the criminal investigation against him took place after he had been formally charged on 6 October 1999, in the presence of a lawyer (see paragraphs 10-12 and 16 above). No other investigative measure involving the applicant had been implemented during the three days when he was not assisted by a lawyer (see, by contrast, Mehmet Şerif Öner v. Turkey, no. 50356/08, § 21, 13 September 2011).

114. The applicant remained silent during his initial interrogations by the investigator, in the presence of his lawyers, on 6 and 12 October 1999. He did not confess until 21 October 1999, when he was being assisted by a lawyer of his choice during questioning (see paragraph 12 above). Admittedly, the applicant subsequently retracted his initial confession, presenting a version of events to the effect that the crimes of which he was suspected had been committed by a foreigner (see paragraphs 14, 16 and 25 above). Notwithstanding that fact, the Court considers that the applicant cannot claim not to have known, at the time of his confession to having taken part in the hold-up in question, that the initial confession could be used in evidence against him during the criminal proceedings.

115. The applicant’s confession was indeed used as a relevant piece of evidence during his trial. However, it is clear that his conviction was not based exclusively on that confession. The domestic courts took into account other evidence corroborating the version of events whereby the applicant had indeed organised the hold-up in question and had encouraged his accomplice A.S. to open fire on the two victims. During his trial he was assisted by lawyers of his choice. He was allowed to present his version of events, to put forward arguments in favour of his acquittal and to secure the gathering of exculpatory evidence. The domestic courts provided detailed reasons for their judgments (see paragraphs 18-31 above).


However, Simeonovi was referred (appealed within the ECHR) to the Grand Chamber for final judgment; the Grand Chamber hearing was held 6 July 2016. The date of Grand Chamber judgment has not been announced.

The circumstances in the Simeonovi case differ from those in the Knox calunnia against Lumumba case.

Knox was interrogated without a lawyer prior to her formal arrest. The statements she made during the interrogation and subsequent interview by the prosecutor on Nov. 6 were considered incriminating, first for the charges of murder and sexual assault, and then for the charge of calunnia. Knox was denied counsel of a lawyer after her arrest by a decision of the prosecutor - which decision may not have met the requirements of Italian procedural law - and only met with a lawyer immediately before or at the start of the justification of arrest hearing on Nov. 8. While in custody after her arrest, and without the counsel of a lawyer, Knox wrote two defensive documents and gave them to the authorities: Memoriale 1 of Nov. 6, and Memoriale 2 of Nov. 7.

In Memoriale 1, she stated that her statements had been coerced, and should not be considered reliable, although she also stated:

2. I also know that the fact that I can't fully recall the events that I claim took place at Raffaele's home during the time that Meredith was murdered is incriminating. And I stand by my statements that I made last night about events that could have taken place in my home with Patrik, but I want to make very clear that these events seem more unreal to me that what I said before, that I stayed at Raffaele's house.


In Memoriale 2, she stated that she was confident that she had spent the relevant time at Raffaele Sollecito's apartment, and had not been at her own flat in the house. She wrote:

This is what happened and I could swear by it. I'm sorry I didn't remember before and I'm sorry I said I could have been at the house when it happened. I said these things because I was confused and scared. I didn't lie when I said I thought the killer was Patrik. I was very stressed at the time and I really did think he was the murder [sic]. But now I remember I can't know who was the murder [sic] because I didn't return back to the house.


According to Dayanan, one function of a lawyer for a person in custody is to help that person's defense. In Knox's case, she was denied that important counsel by a decision of the Italian authorities, although she obviously intended to prepare a defense, even if she may not have considered it such, during that period. Thus, the circumstances of her case are quite different from that of Simeonovi and matches the reasoning the ECHR for the need for counsel of a lawyer during custody, as well during interrogation, as established in Salduz.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Jul 11, 2016 8:45 am

An ECHR case, a Grand Chamber judgment, of potential relevance:

BUZADJI v. THE REPUBLIC OF MOLDOVA 23755/07 05/07/2016

From the press release, accessible from the links on

http://echr.coe.int/Pages/home.aspx?p=home
http://hudoc.echr.coe.int/eng#{%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22]}

The requirement on a judge to give relevant and sufficient reasons for
detention is applicable as from the first decision ordering detention


In today’s Grand Chamber judgment in the case of Buzadji v. the Republic of Moldova (application
no. 23755/07) the European Court of Human Rights held, unanimously, that there had been:
a violation of Article 5 § 3 (right to liberty and security / entitlement to trial within a reasonable
time or to release pending trial) of the European Convention on Human Rights.
The case concerned a businessman’s detention pending trial for ten months. In July 2006 a criminal
investigation was initiated against Mr Buzadji, the director of a State company supplying liquefied
gas, concerning an alleged unsuccessful attempt to defraud the company. He was arrested in May
2007 and placed in detention pending trial. His detention on remand was extended on a number of
occasions, until July 2007 when the courts accepted Mr Buzadji’s request to be placed under house
arrest. He remained under house arrest until March 2008 when he was released on bail and was
eventually acquitted of all the charges for which he had been detained.

The Court examined two issues raised by Mr Buzadji’s case where it considered that it would be
useful to further develop its case-law, namely as to the requirement on national judicial authorities
to justify continued detention and as concerned house arrest.

First, the Court acknowledged that the question of when further relevant and sufficient reasons for
detention – in addition to the persistence of reasonable suspicion – were required was, according to
its well established case-law, left to depend on the rather vague notion of “a certain lapse of time”.

It therefore decided to clarify the guarantees under Article 5 § 3 of the European Convention, specifying that the requirement on a judge or other officer authorised by law to exercise judicial power to give relevant and sufficient reasons for detention applied already at the time of the first decision ordering detention on remand, that is to say promptly after the arrest.

Second, as concerned house arrest, the Court confirmed its case-law according to which house
arrest is considered to amount to deprivation of liberty under Article 5 of the Convention. There was
no question of Mr Buzadji having waived his right to liberty because he had requested house arrest
and had not subsequently challenged the measure: given his state of health, it was understandable
that he had been prepared to make concessions to end his custody. Moreover, the Court reaffirmed
its case-law to the effect that different criteria were not to be applied to the assessment of the
justification for detention even when the form of detention varied (in the present case, between
pre-trial detention and later house arrest).

Looking at the justifications provided for Mr Buzadji’s provisional detention in his particular case, the Court considered that the reasons given by the national courts for ordering and prolonging his detention had been stereotyped and abstract as well as inconsistent. Indeed, neither in the initial detention order nor in the ensuing decisions prolonging his detention had the national courts made any assessment of Mr Buzadji’s character, his morals, his assets and links with the country or his
behaviour during the first ten months of the criminal investigation.
As regards the house arrest decisions, in spite of the courts finding that there were no reasons for his continued detention, they nevertheless ordered his house arrest briefly in June 2007 and then, from July 2007, for seven and
half months.


Comment: The ECHR in this case, as it sometimes does, exercised its judicial authority to extend and clarify its case-law.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Thu Jul 14, 2016 11:07 pm

In its judgments, the ECHR often uses essentially identical summaries of specific case-law for similar circumstances of alleged violations. These summaries change somewhat as the case-law evolves to more effectively identify the application of the European Convention of Human Rights to the range of cases presented to the ECHR.

For example, the ECHR now includes citation of the relatively recent judgment Bouyid v. Belgium [GC] 23380/09 28/09/2015 in its summary of case-law for alleged violations of Article 3. In Bouyid, the ECHR stated:

86. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, cited above, § 162; Jalloh, cited above, § 67; Gäfgen, cited above, § 88; El-Masri, cited above, § 196; and Svinarenko and Slyadnev, cited above, § 114). Further factors include the purpose for which the ill-treatment was inflicted, together with the intention or motivation behind it (compare, inter alia, Aksoy v. Turkey, 18 December 1996, § 64, Reports 1996‑VI; Egmez v. Cyprus, no. 30873/96, § 78, ECHR 2000‑XII; and Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004; see also, among other authorities, Gäfgen, cited above, § 88; and El-Masri, cited above, § 196), although the absence of an intention to humiliate or debase the victim cannot conclusively rule out a finding of a violation of Article 3 (see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999‑IX; and Svinarenko and Slyadnev, cited above, § 114). Regard must also be had to the context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions (compare, for example, Selmouni, cited above, § 104; and Egmez, cited above, § 78; see also, among other authorities, Gäfgen, cited above, § 88).

87. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these aspects, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in Article 3(see, among other authorities, Vasyukov v. Russia, no. 2974/05, § 59, 5 April 2011; Gäfgen, cited above, § 89; Svinarenko and Slyadnev, cited above, § 114; and Georgia v. Russia (I), cited above, § 192).It should also be pointed out that it may well suffice that the victim is humiliated in his own eyes, even if not in the eyes of others (see, among other authorities, Tyrer v. the United Kingdom, 25 April 1978, § 32, Series A no. 26; and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 220, ECHR 2011).

88. Furthermore, in view of the facts of the case, the Court considers it particularly important to point out that, in respect of a person who is deprived of his liberty, or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3(see, among other authorities, Ribitsch, cited above, § 38; Mete and Others, cited above, § 106; and El-Masri, cited above, § 207).

89. The word “dignity” appears in many international and regional texts and instruments (see paragraphs 45-47 above). Although the Convention does not mention that concept – which nevertheless appears in the Preamble to Protocol No. 13 to the Convention, concerning the abolition of the death penalty in all circumstances – the Court has emphasised that respect for human dignity forms part of the very essence of the Convention (see Svinarenko and Slyadnev, cited above, § 118), alongside human freedom (see C.R. v. the United Kingdom, 22 November 1995, § 42, Series A no. 335‑C; and S.W. v. the United Kingdom, 22 November 1995, § 44, Series A no. 335‑B; see also, among other authorities, Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002‑III).

90. Moreover, there is a particularly strong link between the concepts of “degrading” treatment or punishment within the meaning of Article 3 of the Convention and respect for “dignity”. In 1973 the European Commission of Human Rights stressed that in the context of Article 3 of the Convention the expression “degrading treatment” showed that the general purpose of that provision was to prevent particularly serious interferences with human dignity (see East African Asians v. the United Kingdom, nos. 4403/70, 4404/70, 4405/70, 4406/70, 4407/70, 4408/70, 4409/70, 4410/70, 4411/70, 4412/70, 4413/70, 4414/70, 4415/70, 4416/70, 4417/70, 4418/70, 4419/70, 4422/70, 4423/70, 4434/70, 4443/70, 4476/70, 4477/70, 4478/70, 4486/70, 4501/70, 4526/70, 4527/70, 4528/70, 4529/70 and 4530/70, Commission report of 14 December 1973, Decisions and Reports 78-A, § 192). The Court, for its part, made its first explicit reference to this concept in the Tyrer judgment (cited above), concerning not “degrading treatment” but “degrading punishment”. In finding that the punishment in question was degrading within the meaning of Article 3 of the Convention, the Court had regard to the fact that “although the applicant did not suffer any severe or long-lasting physical effects, his punishment ­– whereby he was treated as an object in the power of the authorities – constituted an assault on precisely that which it is one of the main purposes of Article 3 to protect, namely a person’s dignity and physical integrity”(§ 33). Many subsequent judgments have highlighted the close link between the concepts of “degrading treatment” and respect for “dignity” (see, for example, Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI; Valašinas v. Lithuania, no. 44558/98, § 102, ECHR 2001‑VIII; Yankov v. Bulgaria, no. 39084/97, § 114, ECHR 2003‑XII (extracts); and Svinarenko and Slyadnev, cited above, § 138).


In the more recent judgment GEDRIMAS v. LITHUANIA 21048/12 12/07/2016, the ECHR incorporates Bouyid into the summary of its Article 3 case-law:

60. The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see, among many other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 87, ECHR 2010, and Bouyid v. Belgium [GC], no. 23380/09, § 81, ECHR 2015).

61. Allegations of ill-treatment contrary to Article 3 must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” and adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among many other authorities, Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000‑IV, and Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006‑IX). On this latter point the Court has explained that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence which cast doubt on the account of events given by the victim. In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V; Virabyan v. Armenia, no. 40094/05, § 151, 2 October 2012; and Bouyid, cited above, §§ 83-84; also see, mutatis mutandis, Buntov v. Russia, no. 27026/10, § 161, 5 June 2012).

62. The Court further reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. Ill-treatment that attains such a minimum level of severity often involves actual bodily injury or intense physical or mental suffering. In respect of a person who is deprived of his or her liberty, or, more generally, is confronted with law‑enforcement officers, any recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3 (see Bouyid, cited above, §§ 86-88, and the cases cited therein).

63.Lastly, it is not the task of this Court to deal with errors of fact or law allegedly committed by domestic courts, unless and in so far as such errors may have infringed rights and freedoms protected by the Convention. Nonetheless, the Court has to apply a particularly thorough scrutiny where allegations have been made under Article 3 of the Convention, even if certain domestic proceedings and investigations had already taken place. In other words, in such a context the Court is prepared to conduct a thorough examination of the findings of the national courts. In examining them it may take account of the quality of the domestic proceedings and any possible flaws in the decision-making process(ibid., § 85, and the cases cited therein).


It is also notable that the ECHR in evaluating whether or not to accept the allegation of a violation of Article 3 in the Gedrimas case, it considered the credibility of the applicant's statements and that of the police who allegedly mistreated the applicant:

69. The Court is firstly unable to share the domestic authorities’ {negative} view as to the applicant’s credibility. It observes that in his first, rather succinct statement to the prosecutor the applicant only described the incident inside the guard booth, where the officers had allegedly handcuffed him, twisted his arms and kneed him in the stomach (see paragraph 11 above). During later interviews, he provided essentially the same details about the events inside the booth, and added that the officers had also twisted his arms outside (see paragraphs 18, 19 and 22 above). The Court sees those two statements not as contradictory but as complementing one another. While it accepts that the domestic authorities had legitimate reasons to doubt the applicant’s claims that N.B. had not been present during his arrest, it nonetheless considers that that does not, in and of itself, make the rest of the applicant’s statements unreliable, especially since the incident took place at night and the officers, including N.B. himself, provided conflicting accounts as to N.B.’s role during the applicant’s arrest – in particular, whether N.B. had gone inside the booth or stayed outside, whether he had witnessed the applicant’s attempt to punch an officer or had been mistaken about it, and whether he had had any role in handcuffing the applicant (see paragraphs 17, 19, 21, 31 and 41 above and paragraph 70 below). The Court also observes that the applicant’s version of events was confirmed by witness V.V. (see paragraphs 30 and 38 above). Without addressing the credibility of that testimony, the Court notes that it had not been called into question by the domestic authorities.

70. The Court is also unable to share the view of the domestic authorities that the police officers presented “consistent and logical” statements about the circumstances of the applicant’s arrest. It firstly notes that there were several contradictory accounts as to the applicant’s allegedly violent actions. ...


The ECHR judgment in Gedrimas was that the applicant's account was credible and that the statements of the police (and thus that of the State) were not credible. The ECHR found that there had been a violation of Article 3 (inhuman treatment, due to the degree of severity of the injuries) under the substantive and procedural (investigative) branches.

Elements of the principles of the ECHR's reasoning regarding credibility in the Gedrimas case would be applicable in the Knox case, particularly considering the motivation report issued by Boninsegna in Knox's acquittal for calunnia against the police.
Expert witness testimony must be the product of reliable principles and methods. {Paraphrase of Fed. Rules of Evidence 702c}
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Jul 18, 2016 10:16 am

Regarding the ECHR case of Knox v. Italy 76577/13, and in particular the issue of conviction based on a statement made by a person under police questioning but not assisted by a lawyer, the strength of the case against Italy may be evaluated using a compilation of case-law summaries - called a Factsheet - prepared by the ECHR Registry.

The relevant Factsheet is called "Police arrest and assistance of a lawyer" and is a PDF available from a link on:

http://echr.coe.int/Pages/home.aspx?p=p ... tsheets&c=

That site itself may be accessed from a link "Factsheets and Country profiles" on the ECHR home page:

http://echr.coe.int/Pages/home.aspx?p=home

Many of the cases summarized in the Factsheet have been cited and discussed on this Forum and/or ISF.
Expert witness testimony must be the product of reliable principles and methods. {Paraphrase of Fed. Rules of Evidence 702c}
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Jul 25, 2016 1:47 pm

Here is an excerpt - the concluding request for information and the questions - from the Communication to Italy in Knox v. Italy (translated from the original French by Google Translate with some of my own effort):

Communiquée le 29 avril 2016

PREMIÈRE SECTION
Requête no 76577/13
Amanda Marie KNOX
contre l’Italie
introduite le 24 novembre 2013

Application number 76577/13
Amanda Marie KNOX
Against Italy
Lodged 24 November 2013

INFORMATION REQUEST

1. The applicant is requested to produce a copy of the judgment of the Perugia court of 5 December 2009 regarding her conviction for false accusation and a copy of the appeal and of the appeal regarding this procedure.

2. The parties are invited to indicate whether the judgment of the Florence Court of 14 January 2016 was appealed or if it has become final and to provide copies of relevant documents.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted the domestic remedies available to her to complain about the violation of Article 3 of the Convention, concerning the slaps (scappellotti) allegedly suffered, and Articles 6 §§ 1 and 3 a), c) and e) and 8 of the Convention?

2. If so:

a) Was the applicant subjected, in breach of Article 3 of the Convention, to inhuman or degrading treatment?

b) Was the applicant, as required by Article 6 § 3 a) of the Convention, informed promptly, in a language she could understand and in detail, of the nature and cause of the charges against her for false accusation?

c) Did the applicant have the assistance of counsel of her choice, as required by Article 6 § 3 c) of the Convention, especially during the interrogation of 6 November 2007?

d) Did the applicant obtain the free assistance of an interpreter, within the meaning of Article 6 § 3 e) of the Convention?

e) Did the psychological pressure allegedly suffered by the applicant during the interrogations of 6 November 2007, violate the right of the applicant to a fair trial within the meaning of Article 6 § 1 of the Convention, and the right to respect for private life protected by Article 8 § 1 of the Convention?
_____
Comments:

Regarding the first request, the ECHR would presumably analyze the conviction for calunnia and the appeals and appellate judgments for evidence of arbitrariness. Arbitrary judgments are inherently unfair under Convention Article 6.1, according to ECHR case-law.

The ECHR states its desire to learn if the Florence (Boninsegna) court judgment is final and to obtain the documents of the trial. This may include the record of testimony as well as the motivation report. The significance of the Boninsegna MR reasoning may be summarized as follows:

The legal ruling in the Boninsegna judgment is the acquittal of Amanda Knox on the charge of aggravated continuous calunnia against the police and Mignini.

The reasoning supporting this ruling is supplied in the narrative of the motivation report. It is this narrative that the ECHR will include in its review of the case Knox has brought against Italy, alleging that Italy violated her rights under the Convention. The Boninsegna motivation report provides a summary of evidence relating to Knox's allegations as well as judicial opinion. It is significant that no appeal was brought against the Boninsegna judgment by the prosecution. Because in part of the reasoning, stating that Knox's right to defense under the Italian Constitution (Article 24) was violated during the interrogation, in this now final judgment by Boninsegna, Italy will have an essentially insurmountable burden in any attempt to refute Knox's allegations of Italy's violation of Convention Articles 6.3c with 6.1.


The Article 3 allegations fall under the heading of "inhuman or degrading treatment", rather than "torture"; the inflated claims of "torture" were, as far as I know, generally the claims of PGP seeking to discredit Knox's allegations.

The issue of when and how Knox was informed of the charge of calunnia (false accusation) is interesting; had the police followed Italian procedural law, under Article 64, there would have been a warning relating to becoming a witness if the person questioned makes a statement regarding "facts concerning the liability of others".

It will be interesting to learn how Italy will respond to the question of counsel during interrogation, especially in light of the Boninsegna MR. (Italy's response will most likely not become public until the ECHR publishes its judgment, which may not be until some time in 2017 at best.)

There may be some uniqueness in the reference to Article 8 with respect to the interrogation, while the inclusion of Article 3 is, of course, present as expected. The reference to Article 8 may reference some of the "good cop" behavior of the police, such as, for example, one cop - the interpreter and self-described mediator - suggesting that Knox may be suffering from traumatic amnesia, while the "bad cops" yell, threaten, and slap her to coerce a statement.
Expert witness testimony must be the product of reliable principles and methods. {Paraphrase of Fed. Rules of Evidence 702c}
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sun Jul 31, 2016 6:43 am

Here is an excerpt from an ECHR judgment, finding a violation of the Convention when an accused and a court were not provided copies of the original tapes of phone intercepts but only of transcripts, which thus could not be compared to the raw data (the recordings of the phone intercepts); in this case, the accused was convicted:

64. In this connection, the Court reiterates that it is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and the defence.The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and to comment on the observations filed and the evidence adduced by the other party. In addition, Article 6 § 1 requires that the prosecution authorities disclose to the defence all the material evidence in their possession for or against the accused (see Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 60, ECHR 2000‑II, and Natunen v. Finland, no. 21022/04, § 39, 31 March 2009).

65. However, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or to keep police methods of investigation of crime secret, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 § 1 of the Convention. Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see Rowe and Davis, cited above, § 61, Natunen, cited above, § 40, and Leas v. Estonia, no. 59577/08, § 78, 6 March 2012).

67. The Court further observes that the applicant attempted to challenge the lawfulness of the phone tapping, the authenticity of the audiotapes and the reliability of the transcripts in the case file before the Ankara State Security Court. To this end, on at least ten occasions his lawyer filed petitions and made oral submissions to the trial court .... However, an examination of the question as to whether the transcripts included in the case file by the public prosecutor and those prepared by Mr L.B., the expert, were consistent with the content of the audiotapes was not carried out. ... Besides, the applicant was not provided an opportunity to get of hold of all the elements that would have enabled him to challenge the reliability of the transcripts. ... In addition, the court did not play the audiotapes at the hearings in the presence of the applicant or his lawyer. As a result, the applicant’s inability to have access to the originals of those audiotapes prevented him from effectively challenging the reliability of the transcripts. Moreover, as the applicant was not informed of the reason why the court considered it necessary to restrict his rights, he had no opportunity to argue against any such considerations. Lastly, the Court notes that the Court of Cassation also failed to consider the applicant’s arguments concerning his inability to have access to evidence which had been used to secure his conviction.

68. In the light of the foregoing, the Court concludes that the decision‑making procedure applied in the present case failed to comply with the requirements of adversarial proceedings and equality of arms, or to incorporate adequate safeguards to protect the interests of the applicant.

There has accordingly been a violation of Article 6 § 1 of the Convention.


The case is CEVAT SOYSAL v. TURKEY 17362/03 23/09/2014
Expert witness testimony must be the product of reliable principles and methods. {Paraphrase of Fed. Rules of Evidence 702c}
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Wed Sep 28, 2016 11:05 am

Copied from the main thread:

The Grand Chamber of the ECHR has issued its judgment on 13 Sept 2016 in the Ibrahim et al v UK case (50541/08 ...). It found that the Convention rights under Article 6.3c with 6.1 of the 4th applicant had been violated. This judgment is beneficial to Amanda Knox's case before the ECHR.

My belief, based on my relatively limited reading of ECHR cases as well as other ECHR documents, is that the ECHR strives to maintain a high level of consistency and adherence to its case-law in its judgments.

A typical judgment, in my reading, includes recitation of applicable legal principles including case citations.

In the Ibrahim and others judgment by the Grand Chamber, they advanced the following as general principles:

274. Having regard to the fact that a criminal trial generally involves a complex interplay of different aspects of criminal procedure, it is often artificial to try and categorise a case as one which should be viewed from the perspective of one particular Article 6 right or another. As noted above (see paragraph 254), complaints concerning a failure to respect the express or implied Article 6 rights at the investigation stage in criminal proceedings will often crystallise at trial, when the evidence obtained is admitted. When examining the proceedings as a whole in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings, the following non-exhaustive list of factors, drawn from the Court’s case‑law, should, where appropriate, be taken into account:
(a) Whether the applicant was particularly vulnerable, for example, by reason of his age or mental capacity.
(b) The legal framework governing the pre-trial proceedings and the admissibility of evidence at trial, and whether it was complied with; where an exclusionary rule applied, it is particularly unlikely that the proceedings as a whole would be considered unfair.
(c) Whether the applicant had the opportunity to challenge the authenticity of the evidence and oppose its use.
(d) The quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion.
(e) Where evidence was obtained unlawfully, the unlawfulness in question and, where it stems from a violation of another Convention Article, the nature of the violation found.
(f) In the case of a statement, the nature of the statement and whether it was promptly retracted or modified.
(g) The use to which the evidence was put, and in particular whether the evidence formed an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case.
(h) Whether the assessment of guilt was performed by professional judges or lay jurors, and in the case of the latter the content of any jury directions.
(i) The weight of the public interest in the investigation and punishment of the particular offence in issue.
(j) Other relevant procedural safeguards afforded by domestic law and practice.
Expert witness testimony must be the product of reliable principles and methods. {Paraphrase of Fed. Rules of Evidence 702c}
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Wed Sep 28, 2016 4:20 pm

Copied from the main thread:

Excerpt of the Grand Chamber judgment from Ibrahim and others v the UK and my comment:

The 4th applicant was questioned as a witness in a terrorism case; during that questioning, he made statements that were self-incriminating. The UK police, however, did not follow their mandated legal procedures and issue the required warnings or provide a lawyer. The 4th applicant did not withdraw or deny the statements and they were used as part of the evidence against him at trial. No coercion was alleged. The police did not follow the required safety interview procedures that they used for the first 3 applicants for the 4th applicant, nor did they arrest and warn him, and did not record any reason for this deviation.

The ECHR thus concluded:

300. In the light of the above, the Court finds that the Government have not convincingly demonstrated, on the basis of contemporaneous evidence, the existence of compelling reasons in the fourth applicant’s case, taking account of the complete absence of any legal framework enabling the police to act as they did, the lack of an individual and recorded determination, on the basis of the applicable provisions of domestic law, of whether to restrict his access to legal advice and, importantly, the deliberate decision by the police not to inform the fourth applicant of his right to remain silent.

309. However, the fact remains that the witness statement provided a narrative of what had occurred during the critical period, and it was the content of the statement itself which first provided the grounds upon which the police suspected the fourth applicant of involvement in a criminal offence. The statement thus provided the police with the framework around which they subsequently built their case and the focus for their search for other corroborating evidence. The Court therefore concludes that, having regard to the central position of the statement in the prosecution’s case, it can be considered to have formed an integral and significant part of the probative evidence upon which the conviction was based.

310. In his summing-up to the jury, the trial judge drew attention to the irregularities that had occurred in the questioning of the fourth applicant and the taking of the witness statement. He summarised the fourth applicant’s challenge to the statement and instructed the jury members that they were obliged to disregard the statement if they considered that it might have been obtained by something said or done which was likely to render it unreliable, even if they thought that it was or might be true (see paragraphs 169-172 above). However, it is significant that the jury members were instructed to take the statement into account if they were satisfied that it had been freely given, that the fourth applicant would have said these things even if the correct procedure had been followed and that the statement was true. Therefore, the Court considers that the trial judge’s directions left the jury with excessive discretion as to the manner in which the statement, and its probative value, were to be taken into account, irrespective of the fact that it had been obtained without access to legal advice and without the fourth applicant having being informed of his right to remain silent.

311. As the fourth applicant accepted, great weight must be attached to the nature of the offences in his case (see paragraph 241 above). While the offences for which he was indicted were not of the magnitude of the offences committed by the first three applicants, the threat posed by terrorism can only be neutralised by the effective investigation, prosecution and punishment of all those involved in terrorism. However, taking into account the high threshold which applies where the presumption of unfairness arises and having regard to the cumulative effect of the procedural shortcomings in the fourth applicant’s case, the Court considers that the Government have failed to demonstrate why the overall fairness of the trial was , not irretrievably prejudiced by the decision not to caution him and to restrict his access to legal advice. There has therefore been a violation of Article 6 §§ 1 and 3 (c) in the case of the fourth applicant.
________
Thus, even in a terrorism case, where mass casualties may have been inflicted, legal procedures must be followed by the State in accordance with the European Convention of Human Rights.

Therefore Italy will have no rationale acceptable to the ECHR to justify its denial of procedural rights to Amanda Knox, an innocent witness who was definitively acquitted of any involvement in the murder and rape of Meredith Kercher.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Fri Oct 07, 2016 11:41 am

This ECHR case alleged a violation of Article 3 in the denial of adequate medical care to a prisoner, which was argued to have placed that prisoner in a life-threatening situation and subjected him to severe physical and mental suffering (the prisoner subsequently died and his sister continued the application in his behalf). The ECHR judged a violation of Article 3 in the case:

KLIMOV v. RUSSIA 54436/14 04/10/2016

The significance includes explanation of the methods of judgment (paragraphs 55 and 56) and explanation of how, in general, what constitutes a violation of Article 3 (paragraphs 57 and 58). Important concepts:

Para. 55: ....in assessing evidence, it [the ECHR] has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability, but on Contracting States’ responsibility under the Convention....there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts conclusions that are, in its view, supported by a free evaluation of all the evidence, including such inferences as may flow from the facts and the parties’ submissions. In accordance with its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specific nature of the facts, the nature of the allegation made and the Convention right at stake...

Para. 58: ....where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3....

Excerpts from the judgment explaining the methods of judgment:

55. In cases in which there are conflicting accounts of events, the Court is inevitably confronted with the same difficulties as those faced by any first-instance court when establishing the facts. It reiterates that, in assessing evidence, it has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability, but on Contracting States’ responsibility under the Convention. The specific nature of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention ‑ determines its approach to issues of evidence and proof. In proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts conclusions that are, in its view, supported by a free evaluation of all the evidence, including such inferences as may flow from the facts and the parties’ submissions. In accordance with its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specific nature of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012, and the cases cited therein).

56. Furthermore, it should be pointed out that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio [the one making a claim must establish proof]. They should also allow taking into account the specific circumstances of each case, including the nature of the facts at issue and the difficulty for the parties to present evidence in support of their submissions. The Court reiterates its case-law under Articles 2 and 3 of the Convention to the effect that where the events at issue lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries, damage and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Oleg Nikitin v. Russia, no. 36410/02, § 45, 9 October 2008). In this case, in the absence of such an explanation the Court can draw inferences which may be unfavourable for the respondent Government (see, for instance, Orhan v. Turkey, no. 25656/94, § 274, 18 June 2002, and Buntov v. Russia, no. 27026/10, § 161, 5 June 2012).

Excerpts explaining principles relating to Article 3:

57. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill‑treatment must, however, attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Verbinţ v. Romania, no. 7842/04, § 63, 3 April 2012, with further references).

58. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III, with further references).
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Thu Nov 10, 2016 7:45 am

An ECHR judgment of interest, relating to denial of counsel during interrogation:

SITNEVSKIY AND CHAYKOVSKIY v. UKRAINE 48016/06 7817/07 10/11/2016

Briefly, relevant to the AK - RS case, the ECHR found a violation of Article 6 §§ 1 and 3 (c) of the Convention for the first applicant. The first applicant had been held as a suspect in relation to a certain crimes and signed a waiver of counsel. However, following interrogations, he was charged with a more serious crime, attempted murder or murder, which under Ukraine law required that he be given counsel, and he was assigned a lawyer. The use of his statements from the period prior to his having a lawyer was used, in part, to convict him of attempted murder and murder. The ECHR judged that use of those statements constituted a violation of Convention Article 6.1 with 6.3c.

In its written judgment, the ECHR reiterated the following points of its case-law:

62. When examining the proceedings as a whole in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings, the following non-exhaustive list of factors, drawn from the Court’s case‑law, should, where appropriate, be taken into account:

(a) Whether the applicant was particularly vulnerable, for example, by reason of his age or mental capacity.

(b) The legal framework governing the pre-trial proceedings and the admissibility of evidence at trial, and whether it was complied with; where an exclusionary rule applied, it is particularly unlikely that the proceedings as a whole would be considered unfair.

(c) Whether the applicant had the opportunity to challenge the authenticity of the evidence and oppose its use.

(d) The quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion.

(e) Where evidence was obtained unlawfully, the unlawfulness in question and, where it stems from a violation of another Convention Article, the nature of the violation found.

(f) In the case of a statement, the nature of the statement and whether it was promptly retracted or modified.

(g) The use to which the evidence was put, and in particular whether the evidence formed an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case.

(h) Whether the assessment of guilt was performed by professional judges or lay jurors, and in the case of the latter the content of any jury directions.

(i) The weight of the public interest in the investigation and punishment of the particular offence in issue.

(j) Other relevant procedural safeguards afforded by domestic law and practice (ibid., 274).

63. Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, his entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. Furthermore, it must not run counter to any important public interest (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006‑II). For a waiver to be effective it must be shown that the applicant could reasonably have foreseen the consequences of his conduct (see, mutatis mutandis, Idalov v. Russia [GC], no. 5826/03, § 173, 22 May 2012). The right to counsel, being a fundamental right among those which constitute the notion of a fair trial and ensuring the effectiveness of the rest of the guarantees set forth in Article 6 of the Convention, is a prime example of those rights which require the special protection of the “knowing and intelligent waiver” standard established in the Court’s case-law (see Dvorski v. Croatia [GC], no. 25703/11, § 101, ECHR 2015).
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Tue Nov 22, 2016 12:56 pm

An ECHR judgment of interest, relating to a violation of Convention Article 6 because of the non-disclosure of information by the police and prosecutor in a trial:

Cevat Soysal v. Turkey 17362/03 23/09/2014

The ECHR found a violation of the Convention right to a fair trial because of a failure to maintain equality of arms. The prosecution and court did not allow the defense to access the original tapes of phone intercepts to allow the comparison to transcripts presented at trial which resulted in a conviction based in part on the transcripts.

There is relevance here to the failure of the police and prosecution to disclose the raw DNA profile data and other original data (for example, the putative semen stain on the pillow) in the Knox - Sollecito case. Of course, the Knox - Sollecito case resulted in a final definitive acquittal, so the significance to the ECHR may differ.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Tue Nov 22, 2016 6:51 pm

Numbers wrote:An ECHR judgment of interest, relating to a violation of Convention Article 6 because of the non-disclosure of information by the police and prosecutor in a trial:

Cevat Soysal v. Turkey 17362/03 23/09/2014

The ECHR found a violation of the Convention right to a fair trial because of a failure to maintain equality of arms. The prosecution and court did not allow the defense to access the original tapes of phone intercepts to allow the comparison to transcripts presented at trial which resulted in a conviction based in part on the transcripts.

There is relevance here to the failure of the police and prosecution to disclose the raw DNA profile data and other original data (for example, the putative semen stain on the pillow) in the Knox - Sollecito case. Of course, the Knox - Sollecito case resulted in a final definitive acquittal, so the significance to the ECHR may differ.


Here's a relevant excerpt from Cevat Soysal v. Turkey:

.... an examination of the question as to whether the transcripts included in the case file by the public prosecutor and those prepared by Mr L.B., the expert, were consistent with the content of the audiotapes was not carried out (see paragraphs 31, 32, 33 and 39 above). Besides, the applicant was not provided an opportunity to get of hold of all the elements that would have enabled him to challenge the reliability of the transcripts. In this connection, the Court observes that the first-instance court either dismissed the applicant’s requests to obtain a copy of the audiotapes without providing any reason (see paragraphs 14, 23, 26, 27, 29 and 32 above) or failed to issue a ruling in respect of them (see paragraphs 28, 35, 39 and 45 above). In addition, the court did not play the audiotapes at the hearings in the presence of the applicant or his lawyer. As a result, the applicant’s inability to have access to the originals of those audiotapes prevented him from effectively challenging the reliability of the transcripts. Moreover, as the applicant was not informed of the reason why the court considered it necessary to restrict his rights, he had no opportunity to argue against any such considerations. Lastly, the Court notes that the Court of Cassation also failed to consider the applicant’s arguments concerning his inability to have access to evidence which had been used to secure his conviction.

68. In the light of the foregoing, the Court concludes that the decision‑making procedure applied in the present case failed to comply with the requirements of adversarial proceedings and equality of arms, or to incorporate adequate safeguards to protect the interests of the applicant.

There has accordingly been a violation of Article 6 § 1 of the Convention.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Wed Nov 23, 2016 11:04 am

Here's another relevant ECHR case involving an incriminating statement given without and later with a lawyer. The fact that the incriminating statement was given before the suspect provided with a lawyer, and with no evidence that the authorities had obtained a valid waiver of the right to a lawyer, and that the incriminating statement was used as a basis of conviction, motivated the ECHR to judge that there was a violation of Convention Article 6.1 with 6.1c.

I underlined what I consider an especially important statement in paragraph 52. The relevance is that the ECHR would, I believe, rule that the Italian courts could not use Amanda Knox's statements regarding Lumumba or anything else from the Nov. 5/6, 2007 interrogations, where she had no lawyer, against her even if - as the Italian courts wrongfully claim - she later stated that she supported them. She actually retracted these statements in her Memoriales 1 and 2 of Nov. 6 and 7, 2007 (respectively).

CHOPENKO v. UKRAINE 17735/06 15/01/2015

49. The Court notes that, although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Krombach v. France, no. 29731/96, § 89, ECHR 2001‑II). As a rule, access to a lawyer should be provided from the first questioning of a suspect by the police, unless it can be demonstrated in the light of the particular circumstances of each case that there were compelling reasons to restrict this right (see Salduz v. Turkey [GC], cited above, § 55). The right to defence will in principle be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer are used for a conviction (ibid.).

50. Turning to the facts of the present case, the Court notes that the applicant’s first formal questioning as a suspect in the murder of O.K. took place in the evening of 28 June 2005, in the presence of the lawyer M. However, it is clear from the applicant’s submissions, and was not rebutted by the Government, that the day before that questioning he had already been placed in unrecorded police custody and questioned concerning his involvement in the murder in issue. As can be seen from the case file, on 27 June 2005 he signed a statement at the police station attesting to his involvement in the crime against O.K. In addition, on 28 June 2005 the applicant was questioned by the investigator at the prosecutor’s office, who recorded his detailed self-incriminating submissions as “explanations”. The timing of this questioning is unclear. However, absent any clarifications from the Government, the Court accepts the applicant’s version, according to which the questioning preceded his formal arrest on that date.

51. It follows that by virtue of the above-mentioned principles as enshrined in the Court’s case-law, the applicant was entitled to have access to a lawyer during his questioning on 27 and 28 June 2005. However, at that time he was questioned without a lawyer and there is no record indicating that before the questioning sessions in issue he was notified of his right to obtain legal assistance. On the facts of the case, the Court does not find any compelling reason justifying such a restriction of the applicant’s right of access to a lawyer. It follows that this right was not respected during the period in issue.

52.In so far as the applicant alleges that his confession statements should have been excluded from the body of evidence, the Court notes that the applicant repeatedly gave confession statements in presence of two lawyers and did not retract them until the third lawyer was admitted in the proceedings. There is also no proof that the initial confessions given by the applicant without a lawyer were extracted by ill-treatment or under the threat thereof. On the other hand, the Court notes that at the time when the applicant volunteered his original confessions, he might not have been fully aware of their significance, as the initial charges against him concerned non-aggravated murder only. Once they were reclassified as aggravated murder, rape and robbery he chose, possibly on the advice of his lawyer, to remain silent and subsequently retracted his confessions. What is even more important is that the original confessions which, as noted above, were obtained in breach of the applicant’s right to legal assistance, formed part of the case file. Thus, they affected the investigation strategy and set the framework within which the applicant’s further defence had to be mounted. It follows that regardless of whether the applicant chose to retract or maintain these confessions, the initial breach of his right to defence could not be remedied by the mere fact that he was subsequently provided with legal assistance. It necessitated further remedial action on behalf of the authorities involved.

53. Nevertheless, the domestic courts relied on the applicant’s confessions as the main basis for his conviction and failed to act upon his complaints about a breach of his right to defend himself. It is true that the confession statements were not the sole basis for the applicant’s conviction. However, absent any court ruling as to the role of the initial submissions obtained from the applicant in breach of his right to legal assistance and included in the case file, this breach was not remedied in the judicial proceedings.

54. The above considerations are sufficient for the Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of the restriction of the applicant’s right of access to a lawyer during his initial questionings and the use of his self-incriminating statements as a basis for his conviction.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Wed Dec 14, 2016 8:01 am

An ECHR judgment of some relevance:

A woman who was employed by the Turkish Customs department was convicted of corruption in association with others and imprisoned. While in prison, her correspondence with her lawyer was read by the prison authorities. The Turkish law for such reading of correspondence may have been violated, in that only correspondence furthering a crime, threatening prison security, or to members of a criminal or terrorist organization could be read, and then only by a magistrate under confidentiality. The ECHR judged that there had been a violation of Convention Article 8, right to privacy. Here is an excerpt from the judgment.

Case of EYLEM KAYA v. TURKEY 26623/07 13/12/2016

{Translated from the French using Google Translate}

45. In the present case the Court finds that the physical verification of the applicant's correspondence with her lawyer was carried out by the prison authorities and not by an independent magistrate who was required to keep the information confidential of which it could thus have taken cognizance (see, a contrario, Erdem, cited above, § 67). It notes that the examination by the judge of the execution of letters from detainees sent to their defenders is only provided where there is evidence and documents showing that such correspondence is used for the commission of wrongdoing, [or] to maintain the security of the penitentiary institution, or to ensure [monitoring of] communication between members of terrorist organizations or other criminal organizations, whereas physical verification of these letters by the prison administration is carried out systematically (paragraphs 15, 18 and 20 above).

46. In light of the foregoing, the Court observes that the physical verification of the correspondence of detainees with their lawyers, as provided for by national law and carried out by the prison administration, is not surrounded by appropriate safeguards allowing preservation of the confidentiality of the contents of that correspondence, especially since the internal practice relating to letters sent by prisoners convicted under Article 220 CC to their lawyers consists in handing over the letters to the prison authorities in an open envelope (see paragraph 20 above).

47. In the present case, the Court finds, on examination of the letter of 11 June 2007 sent by the applicant to her lawyer in relation to the introduction of the present application, that the seal affixed by the Prison Commission administration with the statement "seen" is on the letter itself, not on the envelope, and that nothing could prevent that administration from reading the contents of that letter. Accordingly, the Court considers that in the present case the measure at issue was not accompanied by adequate and sufficient guarantees.

48. In the light of the foregoing, the Court can not accept that, in the absence of appropriate safeguards provided for by the domestic legislation against abuse, the practice consisting in the systematic physical verification of the applicant's correspondence with her lawyer by the prison administration was proportionate to the legitimate aims pursued (see, mutatis mutandis, Barmaksız v. Turkey, no. 1004/03, § 31, 2 March 2010).

49. Accordingly, the Court held that there had been a violation of Article 8 of the Convention.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sun Jan 22, 2017 7:21 pm

This post is intended to detail the known current status of the ECHR case of Knox v. Italy 76577/13, which was communicated to the Respondent State, Italy, on 29/04/2016. That Communication is in French, as is typical of Communications and Judgments where Italy is the Respondent State.

Based upon the Case Details, available on HUDOC, there have been two additional Communications to Italy since the original was published. In keeping with standard ECHR practice, the contents of these additional Communications have not been published and thus are not known. However, all Communications include formal requests for information (and sometimes for actions) directed to the Respondent State and may include requests for information from the applicant. Questions or notices directed only to the applicant are not published and are not recorded in the Case Details.

According to the Case Details, the importance level of the case is 3, indicating that the ECHR does not necessarily expect new case-law to be generated from this case and that its judgment will likely require only current case-law. However, this should be considered only the preliminary ECHR view and may change if required by the legal principles invoked in the actual judgment.

At a guess, the judgment may be forthcoming in 2017 or 2018 or even later; there is no way to be certain. The reason cases typically take so long is that the ECHR has a heavy case load, there are relatively long periods allocated to responses after each Communication, and after each Communication, the applicant and Respondent State each get a period of time to comment on the other's response.

The ECHR Court Rules regarding Communications and other notices and the actions taken by the Court relating to them, namely the reviews of admissibility and merit, are given in Rules 54 and 54A:


Rule 54 – Procedure before a Chamber
1. The Chamber may at once declare the application inadmissible or strike it out of the Court’s list of cases. The decision of the Chamber may relate to all or part of the application.
2. Alternatively, the Chamber or the President of the Section may decide to
(a) request the parties to submit any factual information, documents or other material considered by the Chamber or its President to be relevant;
(b) give notice of the application or part of the application to the respondent Contracting Party and invite that Party to submit written observations thereon and, upon receipt thereof, invite the applicant to submit observations in reply;
(c) invite the parties to submit further observations in writing
.
3. In the exercise of the competences under paragraph 2 (b) of this Rule, the President of the Section, acting as a single judge, may at once declare part of the application inadmissible or strike part of the application out of the Court’s list of cases. The decision shall be final. The applicant shall be informed of the decision by letter.
4. Paragraphs 2 and 3 of this Rule shall also apply to Vice-Presidents of Sections appointed as duty judges in accordance with Rule 39 § 4 to decide on requests for interim measures.
5. Before taking a decision on admissibility, the Chamber may decide, either at the request of a party or of its own motion, to hold a hearing if it considers that the discharge of its functions under the Convention so requires. In that event, unless the Chamber shall exceptionally decide otherwise, the parties shall also be invited to address the issues arising in relation to the merits of the application.

Rule 54A – Joint examination of admissibility and merits
1. When giving notice of the application to the respondent Contracting Party pursuant to Rule 54 § 2 (b), the Chamber may also decide to examine the admissibility and merits at the same time in accordance with Article 29 § 1 of the Convention. The parties shall be invited to include in their observations any submissions concerning just satisfaction and any proposals for a friendly settlement. The conditions laid down in Rules 60 and 62 shall apply, mutatis mutandis. The Court may, however, decide at any stage, if necessary, to take a separate decision on admissibility.
2. If no friendly settlement or other solution is reached and the Chamber is satisfied, in the light of the parties’ arguments, that the case is admissible and ready for a determination on the merits, it shall immediately adopt a judgment including the Chamber’s decision on admissibility, save in cases where it decides to take such a decision separately.


This is the text in Rule 54 relevant to a Communication and responses thereto. This identifies the current status of the case based on available information.

Source: http://echr.coe.int/Pages/home.aspx?p=home
Link to Official Texts
"Rules of Court" PDF

Note: "respondent Contracting Party" = Respondent State
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Re: ECHR: Convention Violations and Case-Law

Postby LarryK » Mon Jan 23, 2017 12:50 am

Thanks for keeping us up on this, numbers. There is also speculation that Italy may grant her a revision trial without needing to wait for the ECHR ruling, due to the nature of the ruling in her favor on the police slander charges. Do you, or anyone, have any more indications on this?
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Jan 23, 2017 12:49 pm

LarryK wrote:Thanks for keeping us up on this, numbers. There is also speculation that Italy may grant her a revision trial without needing to wait for the ECHR ruling, due to the nature of the ruling in her favor on the police slander charges. Do you, or anyone, have any more indications on this?

Sorry, I have no information on a possible revision trial for Knox before her ECHR case is heard.

There's no reason Italy couldn't do it on its own accord, but there would need to be adquate reasons supplied to satisfy the requirements of admissibility under Italian law. Under Italian law a prosecutor can request a revision trial for a convicted person, just as the convicted person can. However, if a private person requests a revision trial and the request is ruled inadmissible, the requester is obligated to pay a fee under Italian law.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Tue Jan 24, 2017 12:31 am

For the sake of curiosity and a desire to get a quantitative view, I did some analysis of all cases communicated to Italy since 01 Nov 2014; earlier communicated cases did not have information on number of times the case had been communicated. Knox v. Italy was communicated 29 Apr 2016.

Here are some statistical results:

The number of cases first communicated to Italy during this period (01 Nov 2014 to 23 Jan 2017) was 85; of these, 73 were in French, and 12 in English. The Communication Knox v. Italy is in French.

The importance level (a measure of the uniqueness of the case in terms of potential for generating new case-law) was 3 for all 85 cases, indicating none were expected to generate new case law - in other words, all were expected to be resolved using current case law. The importance level may change when the case is judged.

The most numerous Convention Articles relied upon as allegedly violated were:
Article No. Number of Cases Convention Right
6 ........................ 39 Right to a fair trial
8 ........................ 24 Right to respect for private and family life
13 ........................ 22 Right to an effective remedy
P1-1 ..................... 19 Right to protection of property
Total exceeds 85 since a case may have more than one claimed article allegedly violated.

The articles alleged violated in Knox v. Italy are 3, 6, and 8. (Article 3 is the Prohibition of torture and inhuman or degrading treatment or punishment.)

Number of times each case was communicated:

1 Time ... 46 cases
2 Times .. 23 cases
3 Times .. 12 cases
4 Times ... 3 cases
5 Times ... 1 case
_______
Since the above cases are, or may be, still under review by the ECHR, the number of times a case will be communicated before it is judged may be greater than the current result.

The number of times communicated (to the Respondent State) may indicate the ECHR's need for the State's information due to the complexity of a case or other reason.

Knox v. Italy has been communicated 3 times as of 23 Jan 2017.

Source: HUDOC database of the ECHR
http://hudoc.echr.coe.int/eng#{%22respondent%22:[%22ITA%22],%22documentcollectionid2%22:[%22COMMUNICATEDCASES%22],%22kpdate%22:[%222014-11-01T00:00:00.0Z%22,%22%22]}
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sat Jan 28, 2017 7:29 pm

I missed the importance of part of this information from the ECHR. It verifies that Amanda's case, Knox v. Italy, has been assigned to a judicial formation. (From Rule 54.2(b), Rules of the Court, and the fact that the case had been Communicated to Italy, one could only conclude that it was either assigned to a judicial formation which generated the Communication or that the Section President had generated the Communication.)

The Court’s State of Proceedings (SOP) search engine enables parties to find out the current procedural state of an application solely for cases that are:

Allocated to a judicial formation
Not anonymous
Pending before the Court or have been disposed of within the last two years
If the application you are looking for does not meet the above criteria the following message will appear: “No information can be given for this application.” Please note that the information relating to the SOP is available two months after a change in the state of proceedings for a case.

Application number
76577/13
Application title
Knox v. Italy
Date of Introduction
24/11/2013
Name of representative
Carlo Dalla Vedova
Current state of proceedings
Application Communicated to Government with request for observations - Rule 54 § 2 (b)
Last major event
29/04/2016* Communicated to the Government for observations
List of major events

Description
Event date
Communicated to the Government for observations
29/04/2016
Application requiring a decision
23/12/2013

Source: http://app.echr.coe.int/SOP/index.aspx?lg=en
____

So according to an official ECHR notice on its website, Knox v. Italy has been been assigned to a judicial formation, and from other ECHR information it is known that the formation must be a Chamber of 7 judges from the First Section of the ECHR.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sun Jan 29, 2017 10:41 am

Some information on ECHR case law on admissibility. It's the ECHR and its case law that determines admissibility.

66. If more than one potentially effective remedy is available, the applicant is only required to have used one of them (Moreira Barbosa v. Portugal (dec.); Jeličić v. Bosnia and Herzegovina (dec.); Karakó v. Hungary, § 14; Aquilina v. Malta [GC], § 39).Indeed, when one remedy has been attempted, use of another remedy which has essentially the same purpose is not required (Riad and Idiab v. Belgium, § 84; Kozacıoğlu v. Turkey [GC], §§ 40 et seq.; Micallef v. Malta [GC], § 58).It is for the applicant to select the remedy that is most appropriate in his or her case. To sum up, if domestic law provides for several parallel remedies in different fields of law, an applicant who has sought to obtain redress for an alleged breach of the Convention through one of these remedies is not necessarily required to use others which have essentially the same objective(Jasinskis v. Latvia, §§ 50 and 53-54).

76.Where the government claims non-exhaustion of domestic remedies, it bears the burden of proving that the applicant has not used a remedy that was both effective and available (Dalia v. France, § 38; McFarlane v. Ireland [GC], § 107).The availability of any such remedy must be sufficiently certain in law and in practice(Vernillo v. France). The remedy’s basis in domestic law must therefore be clear (Scavuzzo-Hager and Others v. Switzerland (dec.); Norbert Sikorski v. Poland, § 117; Sürmeli v. Germany [GC], §§ 110-12).The remedy must be capable of providing redress in respect of the applicant’s complaints and of offering reasonable prospects of success(Scoppola v. Italy (no. 2) [GC], § 71). The development and availability of a remedy said to exist, including its scope and application, must be clearly set out and confirmed or complemented by practice or case-law(Mikolajová v. Slovakia, § 34). ….

80. One such factor {overcoming an otherwise credible government claim that a remedy was available} may be constituted by the national authorities remaining totally passive in the face of serious allegations of misconduct or infliction of harm by State agents, for example where they have failed to undertake investigations or offer assistance. In such circumstances it can be said that the burden of proof shifts once again, so that it becomes incumbent on the respondent government to show what it has done in response to the scale and seriousness of the matters complained of(Demopoulos and Others v. Turkey (dec.) [GC], § 70).


Source: http://echr.coe.int/Pages/home.aspx?...277355_pointer

PDF: PRACTICAL GUIDE ON ADMISSIBILITY CRITERIA
____

Knox first complained of mistreatment by the police in her Memoriale 1 of Nov. 6, 2007. This document, which she wrote by hand in English, produced no response from the police, prosecution, or courts, except that it was used by the Gemelli CSC panel to justify the use of her statements from Nov. 5/6, 2007 as the basis of a criminal charge of calunnia against her, despite the Gemelli CSC panel otherwise finding her to be a suspect improperly questioned based on Italian law, in violation of CPP Article 63, and thus her statements of Nov. 5/6 could not be used against her for the charges of murder and rape.

The Gemelli CSC panel motivation report, the Hellmann court motivation report, and the Boninsegna motivation report all provide support for Knox's case that her rights under the Convention were violated when she was convicted of calunnia against Lumumba based on statements she had made in an interrogation with no defense lawyer present and subjected to alleged mistreatment and psychological pressure to alter her will and ability to recall and evaluate facts (such mistreatment and pressure - or even positive treatment - being itself a violation of Italian procedural law, CPP Article 188, and ECHR case law).

Paragraph 76 is relevant to the proposition that Knox and her lawyers should have filed an official complaint. First, Knox's Memoriale 1 constituted a complaint in writing that the police and prosecution would be obligated to pursue, and notify Knox and her lawyers of any need to file an official complaint. But Memoriale 1 was a complaint to the same police who it also accused of mistreatment, and they took no action to investigate or seek an official complaint. Thus, the route of an official complaint could not be of practical effect. Furthermore, the ECHR would require Italy to show an instance where such a complaint had the effect of rendering an interrogated person's statements inadmissible in court.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sat Feb 11, 2017 3:47 pm

For Raffaele's situation of no compensation for unfair detention, if upheld by the CSC, these are the relevant European Convention on Human Rights Articles:

5.5 Everyone who has been the victim of arrest or detention
in contravention of the provisions of this Article shall have an
enforceable right to compensation.

5.1 Everyone has the right to liberty and security of person. No
one shall be deprived of his liberty save in the following cases and
in accordance with a procedure prescribed by law:

(c) the lawful arrest or detention of a person effected for
the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed
an offence or when it is reasonably considered necessary
to prevent his committing an offence or fleeing after
having done so;

(a) the lawful detention of a person after conviction by a
competent court;

5.2 Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest and
of any charge against him.

5.3 Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article [5] shall be brought
promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial.

6.3 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 or, if he has not sufficient means to pay
for legal assistance, to be given it free when the interests
of justice so require;
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Tue Mar 07, 2017 3:52 pm

An ECHR case that points out that an acquittal does not by itself redress violations of the European Convention on Human Rights; the violations must be acknowledged by the State and redress must be provided:

DÖNER AND OTHERS v. TURKEY 29994/02 07/03/2017

89. Furthermore, the Court considers that the applicants’ acquittal at the end of those proceedings did not automatically have the effect of removing the effects of the interference with their right to freedom of expression and thus depriving them of their victim status on the particular facts of the instant case. The Court reiterates in this connection that a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention....
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Tue Mar 07, 2017 4:50 pm

This case illustrates the power of precedent in ECHR judgments. The ECHR found several violations of the Convention in this case, but because the applicant (a police officer and lawyer) had knowingly signed a waiver of attorney before being questioned by police, had made no incriminating statements during the questioning, and had obtained the lawyer of his choice soon after questioning, there was no violation of Convention Article 6.3c with 6.1 (unfair trial resulting from denial of lawyer during interrogation).

In contrast, Amanda Knox was a 20 year-old college student not aware of her rights and not fluent in Italian, who was denied a lawyer during interrogation, who was not informed that she was a suspect or that she had a right to remain silent, and who made an incriminating statement, apparently as a result of coercion and suggestion. Furthermore, she was not provided a lawyer in the critical period of two days between her arrest and the hearing to justify that arrest, so that she was denied the opportunity to assemble a defense for the hearing.

PASKAL v. UKRAINE 24652/04 15/09/2011

76. …. In a number of its judgments the Court, being mindful of the vulnerable position of a suspect vis-à-vis the investigative authorities, has emphasised the paramount importance of access to a lawyer before the first questioning as a means to counter the power imbalance between the parties.* It has noted, in particular, that the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.** Likewise, the very fact of restricting access of a detained suspect to a lawyer may prejudice the rights of the defence even where no incriminating statements were obtained as a result.*** On the other hand, neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial, as long as a waiver of the right is given in an unequivocal manner and was attended by minimum safeguards commensurate to its importance.****

*See, among other authorities, Salduz v. Turkey [GC], no. 36391/02, §§ 50-55 and 58, 27 November 2008 and Leonid Lazarenko v. Ukraine, no. 22313/04, §§ 48-52, 28 October 2010.
**See Salduz, cited above, § 55.

***See e.g. Dayanan v. Turkey, no. 7377/03, §§ 32-33, 13 October 2009.

****See Salduz, cited above, § 59.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Mar 13, 2017 9:31 am

Some posters have sometimes expressed concerns about the consistency of ECHR judgments. They have asked if there are examples of cases in which the ECHR found no violation even though an applicant claimed violations of rights such as denial of counsel during an interrogation followed by conviction, a claim similar to one in Amanda Knox v. Italy.

One recent ECHR judgment is an example of such a case, and examining the differences between that case and Knox's may be informative.

In MOROZ v. UKRAINE 5187/07 02/03/2017, the ECHR found no violation of Convention Articles 6.3c with 6.1. Here are some details of the case excerpted from the legal summary, and some analysis of how it differs from that of Knox v. Italy.


Summary Details

On the morning of 1 June 2005 O., the president of the Ukrainian Dental Association, was shot in his office. Mr Moroz had been present at the time, and called an ambulance. When the police arrived, Mr Moroz explained that it had been an accident: that he and O. had both been interested in hunting; that he had brought the {shot}gun as a present for O.; and that the gun had accidentally gone off when O. had tried to pull it to himself.

Mr Moroz was arrested by police, and questioned later that night in the presence of his lawyer. The lawyer indicated to the police that Mr Moroz had to be provided with the opportunity to talk with him in private before the questioning. However, the investigator rejected the request. Mr Moroz was later charged with murder ....

In May 2006 the Kyiv City Court of Appeal found Mr Moroz guilty as charged and sentenced him to 15 years’ imprisonment. The Court held that Mr Moroz had deliberately shot O. twice in the head, as revenge for O.’s role in preventing him from becoming the acting executive director of the Ukrainian Dental Association. The court’s conclusion was based on witness testimony (including that of three people who had entered the room after the incident, and found Mr Moroz smiling), as well as a forensic examination (which included a ballistic examination that contradicted Mr Moroz’s version of events). Mr Moroz appealed, but the Supreme Court upheld the decision in November 2006.

Relying in particular on Article 6 (right to a fair trial), Mr Moroz complained that the proceedings against him had been unfair. In particular, he complained that he had not been allowed to have a private discussion with his lawyer in the police station before his police interview there; and that he had also been denied a lawyer when first questioned about the shooting at the scene.

ECHR Judgment

72. The Court notes that there is nothing in the documents before it to suggest that during the referred interview, the applicant made any statements that differed from his earlier explanations given to the police or would differ from any of his statements made later. The applicant had been consistent in his version of events throughout the proceedings, including during the trial, and persistently denied murder claiming that an accident had happened.... Furthermore, there is no indication in the case-file material that any of his statements played any role in his conviction....

73. Lastly, the Court cannot but observe that the applicant failed to explain, both before and after the case had been communicated to the Government, what prejudice to the overall fairness of his trial had been caused by the alleged failure to allow him to meet privately with his lawyer before the police interview at issue.

74. In view of the above considerations it has been demonstrated that, in the circumstances of the present case, the overall fairness of the trial was not irretrievably prejudiced by the decision to refuse the applicant a confidential communication with his lawyeron 1 June 2005.

75. There has therefore been no violation of Article 6 §§ 1 and 3 (c) of the Convention in the present case.

Analysis (Comparison to Knox v. Italy)

In Knox's case, she was deprived of a lawyer when under interrogation, and her right to a lawyer was further denied for two days after her arrest, until immediately before the hearing to justify the arrest. This is different from the Moroz case.

In Knox's case, there were statements that she made during the interrogation were different than those she made before and after the interrogation. This contrasts to the Moroz case.

In Knox's case, she claims that she was coerced to make those differing statements, which implicated Lumumba in the murder/rape of Kercher. Moroz did not claim any coercion.

In Knox's case, she was convicted of calunnia based on the statements she made during the interrogation; she made no such statements before the interrogation on November 5/6, 2007 or after November 6, 2007. There was no evidence of her maintaining this false accusation independent of the alleged violation of her will in the period during and immediately after the interrogation. In contrast, Moroz was convicted of murder based on evidence entirely independent of his statements.

In the Knox case, there are judgments from the Gemelli CSC panel, the Hellmann and the Boninsegna courts, and testimony from the police, which explicitly support aspects of her claims of coercion, violation of defense rights, and unfairness of trial. The ECHR would also likely note the clearly arbitrary reasoning justifying the calunnia conviction. There was no such support found by the ECHR in the Moroz case; the denial of a confidential discussion between Moroz and his attorney was not found unfair because of the other factors in the case justifying the conviction.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Thu Mar 30, 2017 12:02 pm

An edited excerpt from an ECHR judgment on redress of violations of Convention Article 3.

SHESTOPALOV v. RUSSIA 46248/07 28/03/2017

56. ... [I]n cases of willful ill-treatment by State agents in breach of Article 3, the Court has repeatedly found that, in addition to acknowledging the violation, two measures are necessary to provide sufficient redress.

Firstly, the State authorities must have conducted a thorough and effective investigation capable of leading to the identification and punishment of those responsible.

Secondly, an award of compensation is required where appropriate or, at least, the opportunity to apply for and obtain compensation for the damage sustained as a result of the ill-treatment.

In cases of willful ill-treatment by State agents, a breach of Article 3 cannot be remedied only by an award of compensation to the victim because, if the authorities could confine their reaction to incidents of willful ill-treatment by State agents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity. The general legal prohibition on torture and inhuman and degrading treatment, despite its fundamental importance, would thus be ineffective in practice. That is why awarding compensation to the applicant for the damage which he sustained as a result of the ill-treatment is only part of the overall action required. The fact that the domestic authorities did not carry out an effective investigation is decisive for the purposes of the question of whether the applicant lost his victim status.
__
Edits of the above include deletion of inline citations and other parenthetical material.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sat Apr 08, 2017 9:55 pm

Looking to future events resulting from the trials of Knox and Sollecito, one remaining issue is Knox's claim that Italy violated her rights under the European Convention of Human Rights, which is now, according to the ECHR in its Country Profile for Italy, a “noteworthy pending case” called Knox v. Italy 76577/13 (communicated 29/04/2016).

The claims in Knox v. Italy are related to ECHR case law that are, in part, recently summarized in Ibrahim and others v. the United Kingdom [GC] 50541/08 ….

Here is an excerpt from Ibrahim and others v. the UK [GC] illustrating some of that ECHR case law (inline citations omitted for clarity):

267. 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 existence of compulsion that gives rise to concerns as to whether the privilege against self-incrimination has been respected. For this reason, the Court must first consider the nature and degree of compulsion used to obtain the evidence. 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. The first is where a suspect is obliged to testify under threat of sanctions and either testifies in consequence* or is sanctioned for refusing to testify. The second is 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. The third is where the authorities use subterfuge to elicit information that they were unable to obtain during questioning.
____
* This includes cases where the suspect is interviewed supposedly as a witness - meaning the warnings of the right to remain silent etc. are not given - but the police and prosecution use a statement obtained as evidence against the person to convict him.

The relevance for Knox v. Italy is that Knox was interrogated under the pretense that she was a witness, and not given the necessary warnings according to Italian law (CPP Article 63); this violation was acknowledged by the Gemelli CSC panel and the Boninsegna court.

** Note that ECHR uses the word "often", meaning that there are cases where the physical or psychological pressure does not breach Article 3, but the treatment by the police still amounts to a compulsion which renders use of the evidence or statement to obtain a conviction a violation of Article 6.

The relevance is that whether or not the ECHR finds that the police treatment of Knox during the interrogation was a breach of Article 3, the ECHR, relying on the Hellmann and Boninsega courts' motivation reports, would have grounds to conclude that Knox had been pressured during the interrogation to make her statements against Lumumba.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sun Apr 09, 2017 5:38 pm

The type of judicial "reasoning" seen in the Knox - Sollecito case, in which a court adopts a judgment contrary to the evidence or fabricates a scenario not supported by evidence to enable a conviction in a criminal case or disadvantage a party in a civil or administrative case has been found to be inviolation of Convention Article 6.1, right to a fair trial, by the ECHR. The ECHR calls such reasoning "arbitrary", "manifestly unreasonable", or "manifestly inadequate". "As the {ECHR} Court has often noted, the rule of law and the avoidance of arbitrary power are principles underlying the Convention" (from Taxquet v. Belgium).

Examples in the ECHR case law include:

HIRVISAARI v. FINLAND 49684/99 27/09/2001 See paragraphs 30 - 33.

TATISHVILI v. RUSSIA 1509/02 22/02/2007 See paragraphs 61 - 63.

TAXQUET v. BELGIUM 926/05 16/11/2010 See paragraph 90.

TCHANKOTADZE v. GEORGIA 15256/05 21/06/2016 See paragraphs 107 - 109.

NAVALNYY AND OFITSEROV v. RUSSIA 46632/13 28671/14 See paragraph 101 and citations therein.

GRADINAR v. MOLDOVA 7170/02 08/04/2008 See paragraphs 107 -117. Note that failure of the convicting court to give sufficient reasons for conviction, for example, concerning issues of fabricated evidence, led to a finding of a violation of Convention Article 6.1.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Fri Apr 21, 2017 7:41 am

Amanda complained of police mistreatment in court and in each of her appeals against the judgment of conviction for calunnia, but (apparently) did not file the formal complaint required in Italy for the prosecution of the police.

Some posters have argued that this means that she did not exhaust domestic remedies regarding her claim before the ECHR of a violation of Convention Article 3, the prohibition of torture or inhuman or degrading treatment.

However, this situation of an individual complaining of police mistreatment in court but not filing a formal complaint has come up previously, the ECHR has found that the complaint in court is sufficient, because the States ("The High Contracting Parties" including Italy) that have signed the Convention treaty have pledged on the basis of Article 1: "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention." These rights include, of course, Article 3.

Here's an example from ECHR case law:

Grinenko v Ukraine 33627/06 15-11-2012

Grinenko maintained that Ukraine had violated his rights under Convention Articles 3 (prohibition of torture or inhuman or degrading treatment), 5 (right to liberty, prohibition against arbitrary detention), and 6 (right to a fair trial) in the course of a criminal case: an allegation that he had ordered a murder for hire.

Before the ECHR, Ukraine's defense was that Grinenko's application for violation of Article 3 was inadmissible because he had not followed proper procedures for a complaint in the Ukrainian justice system. He had repeatedly mentioned his complaint in court proceedings, but had not filed the appropriate formal complaint with the authorities.

ECHR judgment: State authorities must take action whenever there is any credible allegation of mistreatment by State agents, and statements by an alleged victim in court are adequate to bring such allegations to the level of requiring an effective investigation. Failure of Ukraine to conduct an effective investigation was thus a violation of Convention Article 3.

The relevant excerpt from the ECHR judgment:

61. The Court reiterates that where an individual makes an arguable claim that he has been ill-treated by the State authorities in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention, requires by implication that there should be an effective official investigation. ....

62. ... [T]he Court considers that the applicant made an arguable complaint of ill-treatment before the domestic authorities which triggered their procedural obligation under Article 3 of the Convention to carry out an effective investigation of the alleged facts. Meanwhile, the applicant’s allegations were examined exclusively by the courts in the course of legal argument concerning the admissibility of evidence at trial. ....
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What independent and effective investigation did Italy conduct with regard to Amanda's complaints of police mistreatment? One measure was ... Italy launched a criminal case against Amanda for calunnia against the police and Mignini. That's not the kind of investigation that the ECHR envisions, even though Amanda was acquitted by the Boninsegna court.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sat Apr 22, 2017 10:36 pm

The ECHR definitions of "lawful", "arbitrariness", and "bad faith" in terms of an arrest:

KAKABADZE AND OTHERS v. GEORGIA 1484/07 02/10/2012

62. The Court reiterates that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub‑paragraphs (a)‑(f) of Article 5 § 1 of the Convention, be “lawful”1. Where the “lawfulness” of detention is in issue, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law2. This primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention3. “Quality of law” in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness4. The standard of “lawfulness” set by the Convention thus requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail5.

63. Compliance with national law is not, however, sufficient. Article 5 § 1 of the Convention requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness6. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1. The notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention. While the Court has not previously formulated a global definition as to what types of conduct on the part of the authorities might constitute “arbitrariness” for the purposes of Article 5 § 1, key principles have been developed on a case-by-case basis. Furthermore, detention will be “arbitrary” where, despite complying with the letter of national law, there has been an element of bad faith on the part of the authorities8 or where the domestic authorities have neglected to attempt to apply the relevant legislation correctly9.

1 See Assanidze v. Georgia [GC], no. 71503/01, § 170, ECHR 2004‑II
2 See Saadi v. the United Kingdom [GC], no. 13229/03, § 67, 29 January 2008
3 See Stafford v. the United Kingdom [GC], no. 46295/99, § 63, ECHR 2002‑IV, and Kafkaris v. Cyprus [GC], no. 21906/04, § 116, ECHR 2008
4 See, for instance, Nasrulloyev v. Russia, no. 656/06, § 71, 11 October 2007, and Mooren v. Germany [GC], no. 11364/03, § 76, 9 July 2009
5 See Baranowski v. Poland, no. 28358/95, § 52, ECHR 2000‑III
6 See Bozano v. France, 18 December 1986, § 54, Series A no. 111
7 See Saadi, cited above, § 67
8 See Giorgi Nikolaishvili v. Georgia, no. 37048/04, § 53, 13 January 2009; Bozano, cited above, § 59; and Saadi, cited above, § 69
9 See Benham v. the United Kingdom, 10 June 1996, § 47, Reports of Judgments and Decisions 1996-III, and Liu v. Russia, no. 42086/05, § 82, 6 December 2007
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sun Apr 23, 2017 12:55 am

ECHR: Compensation for unjust detention without the acknowledgment that the detention was a violation of the Convention is insufficient and means the applicant retains victim status. Also, a reiteration of the definition of "reasonable suspicion".

LABITA v. ITALY 26772/95 06/04/2000

143. In the instant case, even though the Palermo Court of Appeal, in a decision of 20 January 1998 lodged at the registry on 23 January 1998, acceded to the applicant's claim for compensation for unjust detention, it based its decision on Article 314 § 1 of the Code of Criminal Procedure, which affords a right to reparation to “anyone who has been acquitted in a judgment that has become final” (see paragraph 92 above). The detention is deemed to be “unjust” as a result of the acquittal, and an award under Article 314 § 1 does not amount to a finding that the detention did not satisfy the requirements of Article 5 of the Convention. While it is true that the length of the applicant's detention pending trial was taken into account in calculating the amount of reparation, there is no acknowledgment in the judgment concerned, either express or implied, that it had been excessive.

144. In conclusion, the Court considers that despite the payment of a sum as reparation for the time he spent in detention pending trial, the applicant can still claim to be a “victim” within the meaning of Article 34 of the Convention of a violation of Article 5 § 3.
....
155. ...[F]or there to be reasonable suspicion there must be facts or information which would satisfy an objective observer that the person concerned may have committed an offence (see the Erdagöz judgment cited above, p. 2314, § 51 in fine, and the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, pp. 16-17, § 32)
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Apr 24, 2017 10:00 pm

Here's some information on how the European Court of Human Rights ECHR judges the merits of cases.

It uses the text of the European Convention on Human Rights as a basis of fundamental legal principles, similar to a constitution. In addition, there are some legal principles that it has adopted as fundamental because they are commonly accepted in Western democracies, such as, for example, the right to remain silent - that is, the right for a person not to be compelled to testify against himself.

The Convention has rather broad principles, and therefore the ECHR must interpret the meaning of the Convention as applied to particular cases. The ECHR uses the common law method, reasoning how to apply the Convention to the unique features or facts of a particular case the first time it encounters such aspects. Then it adopts that application of the Convention as precedent whenever it encounters another case with identical or essentially similar relevant features or facts to that first-instance case. The ECHR may modify that precedent, maintaining the same principles, in its judgment of a case that has relevant features or facts that have some commonality to the first-instance case, but different enough to require such modification.

In an ECHR judgment, under the heading "The Law", the ECHR discusses its legal reasoning in numbered paragraphs; one or more of the texts of these paragraphs will contain legal precedent derived from a previous ruling, or will be a new or modified legal principle that will become precedent for sufficiently similar cases. Not every feature of a new case needs to be identical to that of the first-instance case in order for the precedent of the first-instance case to apply; the ECHR (and other common law courts) generalizes or abstracts the principles it develops into precedence.

Thus, in Salduz v. Turkey, the precedents derived from that case include:

55. Against this background, the Court {ECHR} finds that in order for the right to a fair trial to remain sufficiently “practical and effective” (see paragraph 51 above), Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 (see, mutatis mutandis, Magee, cited above, § 44). The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

72. The Court {ECHR} reiterates that the most appropriate form of redress for a violation of Article 6 § 1 would be to ensure that the applicant, as far as possible, is put in the position in which he would have been had this provision not been disregarded (see Teteriny v. Russia, no. 11931/03, § 56, 30 June 2005; Jeličić v. Bosnia and Herzegovina, no. 41183/02, § 53, ECHR 2006‑XII; and Mehmet and Suna Yiğit v. Turkey, no. 52658/99, § 47, 17 July 2007). The Court finds that this principle applies in the present case as well. Consequently, it considers that the most appropriate form of redress would be the retrial of the applicant in accordance with the requirements of Article 6 § 1 of the Convention, should the applicant so request (see, mutatis mutandis*, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003).

* "Mutatis mutandis" means to take notice of the similarities of two cases despite there being some differences in the cases.

Thus, application of Salduz v. Turkey 36391/02 [GC] as a precedent does not require that subsequent cases where it is applied must be confined to the exact features and facts of Salduz. The precedents are set by the texts of specific numbered paragraphs, and those texts are general in their meaning and use as described by the wording of the texts.

A primer on the use of precedent in common law judicial systems may be found at:

https://en.wikipedia.org/wiki/Precedent
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sun Apr 30, 2017 9:46 am

Another ECHR case of interest (excerpt from the press release; the judgment is in French):

Sîrghi v. Romania (no. 19181/09)*
The applicant, Marinică Sîrghi, is a Romanian national who was born in 1973 and lives in
Verbania (Italy).
The case concerned the fact that Mr Sîrghi had not been assisted by a lawyer when he had made his initial statements at the police station in the context of criminal proceedings against him, and his allegation that he had not been informed of the charges against him. While driving a tractor on the public highway during the night of 8 July 2006 Mr Sîrghi was stopped by police officers in order to undergo a breathalyser test. As Mr Sîrghi attempted to flee, the police officers immobilised him and took him to Arad County Hospital, where he was breathalysed. A police report was drawn up on 9 July 2006 in the presence of Mr Sîrghi and two witnesses; the applicant refused to sign the report. He also made a handwritten statement, which was added to the file, in which he said that he had been driving the tractor to a car wash, had drunk one beer and did not have a valid driving licence. On 9 August 2006 the public prosecutor’s office opened criminal proceedings against Mr Sîrghi for theft and for driving a vehicle while under the influence of alcohol and without a driving licence. {He later claimed his statement was given under duress and maintained someone else was driving the tractor, and he was a passenger.} .... In a judgment of 31 January 2008 Mr Sîrghi was found guilty and sentenced to six years’ imprisonment. He appealed against the judgment, claiming in particular that his defence rights had been breached because he had not been informed of the charges against him and had not been assisted by a lawyer when he gave a statement at the beginning of the investigation. {His appeal was dismissed in final judgment.}

Relying in particular on Article 6 §§ 1 and 3 (c) (right to a fair trial/right to be informed promptly of the accusation/right to the assistance of a lawyer), Mr Sîrghi complained that the criminal proceedings against him had been unfair, notably alleging that he had not been informed of the possibility of being assisted by a lawyer.

{ECHR judgment:} Violation of Article 6 §§ 1 and 3 (c)

Here is the conclusion of the ECHR judgment, Google translated into English, condensed for clarity and with inline citations deleted:

"50. In the present case, the Court considers that the fact that it was impossible for the applicant to be informed of his rights of defense and of the right to be assisted by a lawyer and {the law requiring the suspect to be cautioned was apparently not enforced (?)}.

52. .... {T}he Court is of the opinion that the Court of Appeal did not examine the merits of the applicant's complaint and thus failed to remedy the consequences resulting from the non-assistance of the applicant by a lawyer during his interrogation by the police.... In addition, the Court notes that both the court of first instance and the Arad County Court relied on the applicant's two statements in support of his conviction .... {T}he Court of Appeal in Timişoara .... did not examine the merits of the applicant's complaint alleging the absence of a lawyer at the time of his statements.

53. Accordingly, the Court considers that the fact that the applicant could not be assisted by a lawyer during his interrogation by the police irreparably affected his rights of defense. It therefore concludes that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention."

____
Analysis: The ECHR found that the applicant's defense rights under the Convention had been violated, including the right to be informed of defense rights and the right to a lawyer during interrogation. The judgment relied only on the actions and lack of actions of the State authorities, and not on whether or not the applicant was guilty or not guilty of the criminal charges against him. This is consistent with the ECHR not having the role of a court of appeal; its role is to judge whether or not the respondent State violated the Convention rights of the applicant, and, if they have been, to indicate means for redress. In this case, it appears that the respondent State, Romania, agreed that the possibility of a retrial (reopening of proceedings) would be part of the redress if the ECHR found a violation:

"56. The Government observed that the applicant had not proved that he had suffered pecuniary damage and had objected to the payment of a sum in that respect. As regards non-pecuniary damage, it considered that the finding of a violation of Article 6 of the Convention taken together with the possibility of obtaining the reopening of the domestic proceedings constituted sufficient compensation for that damage. Moreover, it is of the opinion that the sum claimed by the applicant is excessive in relation to the case-law of the Court in this matter."
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon May 01, 2017 1:06 pm

Another summary of ECHR case law, from an ECHR judgment, on the right to a lawyer and the right to remain silent:

PAVLENKO v. RUSSIA 42371/02 01/04/2010

97. Article 6 § 1 of the Convention requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right (see Salduz v. Turkey [GC], no. 36391/02, § 55, 27 November 2008; see also Dayanan v. Turkey, no. 7377/03, §§ 29-34, 13 October 2009). Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6 (ibid). The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

100. As regards the privilege against self-incrimination and the right to remain silent, the Court reiterates that these are generally recognised international standards which lie at the heart of a fair procedure. Their aim is to provide an accused person with protection against improper compulsion by the authorities and thus to avoid miscarriages of justice and secure the aims of Article 6 (see Bykov v. Russia [GC], no. 4378/02, § 92, with further references). 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 seeks to prove the case against the accused without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In examining whether a procedure has extinguished the very essence of the privilege against self-incrimination, the Court must examine the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put (ibid.).

101. The Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial (see Salduz, cited above, § 54). At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006-..., and Kolu v. Turkey, no. 35811/97, § 51, 2 August 2005). Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination (see, mutatis mutandis, Jalloh, cited above, § 101).
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