THE RIGHT TO A FAIR TRIAL AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS
by L. H. Leigh*
I. Introduction
The European Convention on Human Rights has had and will continue to have a profound influence on the concept of a fair trial both among those States which adhere to it and those which wish to cooperate with Convention States, in the administration of justice, and primarily criminal justice. The importance of this latter consideration in an increasingly interdependent world marked by a growing level of transnational crime, scarcely needs emphasis.
What follows is essentially a sketch of the most important developments in relation to the topic. It could hardly be more. Two comprehensive accounts of the evolving jurisprudence of the European Commission and the Court have already been published, while a complete account of the influence of the Convention would have to take account of the legislation and the jurisprudence of all the States signatory to it as well.(1) The latter is, to the best of my knowledge, a task yet to be undertaken.(2)
Article 6 of the European Convention on Human Rights provides an overarching and autonomous statement of the individual's entitlement to a fair trial for the determination of his civil rights and liabilities or of any criminal charge against him. The evolving jurisprudence of the Strasbourg organs recognizes that the Convention must accommodate different legal systems exhibiting different terminologies, and organized in somewhat different procedural steps. It is possible, no doubt, to construct a morphology of criminal procedure according to which different systems, provided they are not unrecognisably so, appear to be marked by similar stages, but such schema are seldom specific enough to be very helpful.(3) The Convention must also take account of different legal traditions. Damaska has pointed out that the Continental European tradition, with its emphasis on fact-finding by officials, typically takes longer to bring cases to trial than does the common law tradition where, historically at any rate, a wider range of matters was left unresolved beforehand.(4) The need to accommodate these traditions was early recognised by the court in Neumeister v. Austria.(5)
Neither this tradition, nor the very different systems of public administration in the European States, nor the difficulties which some states have found in managing legal matters in accordance with reasonable standards of justice, have prevented the Commission and the Court from approaching the interpretation of human rights guarantees robustly. The jurisprudence is replete with statements requiring States to put their house in order.(6)
The interpretive approach which the Commission and the Court have adopted thus stresses that the Convention is to be interpreted objectively, and not in accordance with the meaning ascribed to it by any particular State or States. It is by its nature teleological and autonomous. It recognises the Convention as having an evolutionary dynamic.(7)
Two limitations to the reach of the Convention should, however, be noted. The first is that article 6 is concerned, not with substantive, but with procedural due process. The Court thus may not substitute its own assessment of the facts for that of domestic courts. Its task is "to ascertain whether the proceedings in their entirety, including the way evidence was taken, were fair."(8) The second is that the Commission and the Court do not pronounce in abstracto, from which it logically follows that systems of procedure will not as such be struck down unless, one supposes, it is obvious that a system cannot be so operated as to ensure procedural due process.(9)
Finally, it should be noted that the capitulations in article 6(3) are particular illustrations of the fair trial principle and that very often an overall assessment of the fairness of a proceeding may be taken, with particular violations being taken into account in reaching a final, global, conclusion.(10)
II. Matters to Which Article 6 Extends
Article 6 applies both to the determination of civil rights and to criminal charges. Both terms need to be defined according to an autonomous meaning since otherwise States could stultify the Convention simply by the process of domestic classification. This observation does not necessarily presuppose bad faith by States. The growth of the welfare State and indeed the administrative State generally affects both the substance and determination of individuals' civil entitlements (to use a neutral term) while efforts to decriminalize certain conduct result in an administrative law of sanctions which needs to be classified for convention purposes.
The Court and the Commission have thus had to consider what is meant by the phrase "his civil rights". Article 6 applies to any action whose subject matter is pecuniary in character and founded on an alleged infringement of rights which are pecuniary rights.(11) In the context of a legislatively annulled arbitration it has been held to be enough that the proceedings should be decisive for private rights and obligations.(12) Furthermore, once domestic law gives an entitlement, for example to compensation, it is immaterial for the purposes of article 6, whether the matter must be pursued through administrative rather than civil courts.(13)
The evolving jurisprudence of the Court has, however, gone beyond this. The autonomous notion of "civil right" extends to many activities which individuals carry on under licence or permission, for example the practice of a learned profession.(14) In Ortenburg v. Austria, it held, in the context of a planning decision in relation to contiguous land which adversely affected the value of the applicant's land, that a matter may be a "civil right" where it substantially affects private rights, in this instance the value of the applicant's land.(15) This is, surely, to go beyond any question of a right in any traditional sense since it cannot be said that a proprietor had any general right to ensure that the activities of others (including the State) would not diminish the value of his property (as distinct from depriving him of the right to acquire, enjoy or alienate it). It is now apparent also that article 6 has an application in the field of social insurance entitlements.(16)
A similar, functional approach has been taken to the notion of "criminal charge". In Engels the Court held that a State cannot escape the fundamental obligation to grant a fair trial of a criminal charge simply by classifying an offence as disciplinary.(17) The Convention is not opposed to the Contracting States creating or maintaining a distinction between criminal law and disciplinary law, but it does not follow that the classification thus made is decisive for the purposes of the Convention. Instead, functional criteria such as the nature of the offence, and the severity of the possible sanction, fall to be assessed. These considerations apply generally and their application may be seen in relation to prison discipline offences(18) , and to administrative offences.(19)
The Court thus looks to a cumulation of factors which, taken together, will conclusively demonstrate that the case has a criminal character under the Convention.(20) In its most recent cases it affirms that it looks to such matters as: the classification of the matter in domestic law (in which case article 6 applies), whether legislation affects the general interests of society normally protected by the criminal law and whether the penalties are imposed for an act amounting to an infraction (which permits a measure of historical analogy), whether the penalty is a substitute for a penalty which might otherwise have been imposed by criminal courts in the same matter, and whether the penalty is deterrent in character.(21)
All this signals a departure from a purely definitional approach in favour of the sort of characterizational analysis found elsewhere in the law, and for example in Private International Law.(22)
1. Access to Courts
It is obvious that article 6 requires that an aggrieved party have had access, at the national level, to the court system. Problems of access arise in at least four contexts. The first is whether the matter in question falls outside the ambit of those matters reached by article 6. The principles applicable to that issue are noted above. The second is whether, for reasons of ordre public, the State can restrict access to persons such as legal advisers who might be able to assist the individual in bringing proceedings. The third is whether such matters as security for costs (which unquestionably act as burdens on proceedings) can be exacted in the interests of other litigants. The fourth is when and to what extent the State can deny legal aid to a defendant without means either at the trial or appellate level.
The first two of these issues were addressed in Golder v. United Kingdom.(23) Golder petitioned the Home Secretary for permission to consult a solicitor with a view to bringing a civil action for libel against a prison officer. Permission was refused. This was a hindrance which amounted to preventing Golder from bringing proceedings. The Court holds that article 6 is not limited in application to matters already before the courts. The right of access is inherent in article 6. While there might be circumstances in which the application of the Convention to prisoners could competently be limited, the Court concluded that none such applied in this case which was concerned with an incident in prison life for which the Home Secretary was ultimately responsible.
In relation to security for costs, the Court laid down the leading principle (which obviously has a wider application) in the following terms: limitations to the right of access to the courts must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired, and any such restriction must pursue a legitimate aim. In this latter respect there must be a reasonable relation of proportionality between the means employed and the aim sought to be achieved. Security for costs orders protect the other party against the prospect of an irrecoverable bill of costs. They do not, of themselves, impair the very right of access.(24)
A refusal of legal aid raises issues under article 6(3)(c) of the Convention. In addition it is a constituent element of the broad guarantees contained in article 6(1), because without such assistance access to the courts, and particularly to appellate courts, may be illusory. This theme is further developed in connection with the right to counsel.
2. The Extent of Article 6
It follows from what has been said above, that article 6 is not limited in its application to matters already before the courts. Trial is regarded as the culmination of an adversarial process. The fairness of that process is the primary value ensured by the Convention. Thus, faults in the earlier pre-trial phase may be such as to vitiate the fairness of the entire procedure and thus of the trial itself. In criminal matters, in relation to the requirement that matters be dealt with within a reasonable time, it applies from the date of charge to the ultimate resolution of the case by appeal or cassation, if any.(25) Indeed, there is no reason to suppose that it would not apply to a more extended time frame if, for example, delay in bringing charges were such as to prejudice the possibility of a fair trial. In respect of other aspects of the Convention its protective ambit is wider because it applies, indeed, to certain procedures prior to the date of charge.(26)
In civil matters also, article 6 applies to the proceedings in their entirety. In Stran Greek Refineries and Stratis Andreakis v. Greece, the essential facts of which have been noted above, the Court holds that article 6 applied both to the hearings inter partes and to the legislative intervention designed to deprive the applicant of the fruits of victory in the courts.(27)
While article 6 does not require a State to institute any, or any particular appeal or cassation system, such a system, once instituted, will attract the guarantees of article 6.(28)
3. Speedy Trial
Article 6 guarantees the right to trial within a reasonable time. In both civil and criminal proceedings this has given rise to a considerable body of case law, only the leading of features of which can be addressed here. Two principles have already been mentioned, first, that the value of speed must be balanced against that of justice and that Continental procedures lay stress on the State's function in ensuring that every measure is taken which is likely to elucidate the truth or falsehood of the charges, and secondly, that the State may not plead, as an excuse, the insufficiency of the measures which it has taken in order to secure a speedy trial.
In both civil and criminal proceedings the Court and the Commission have said that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and having regard to its complexity, the conduct of the parties, and the authorities dealing with the case.(29) Regard may also be had to the particular position of the claimant in a civil case. In Dema v. France the court held that it was appropriate in determining whether the speedy trial guarantee had been respected, to look to the shortened life expectancy of a claimant who contracted HIV from a tainted blood transfusion.(30)
The Court's assessment may be with respect to particular steps or it may be an overall assessment.(31) The Convention is concerned with State responsibility, and the responsibility is that of the State against which the complaint is made. It therefore follows that delays attributable to the accused's abscondence(32) or to his indulging in purely temporizing measures(33) must be disregarded in determining whether a reasonable time has been exceeded. Furthermore, a State which requires to obtain evidence from a foreign jurisdiction by letters rogatory is not responsible for delays on the part of the requested State, perhaps generally, but at any rate where it has made representations to the requested State with a view to securing speedy compliance with such a request.(34) On the other hand, a State cannot escape responsibility by urging that matters were delayed before a court of cassation, for example, in order that several like cases might be heard together.(35) It would, however, seem unreasonable to condemn any delay whatsoever attributable to such a ground.
In assessing delay, regard is had not simply to proceedings at trial and on appeal, but to the totality of proceedings. Thus, where it was thought necessary to refer matters to the Constitutional court in order that a ruling on constitutionality be had, and where such a ruling was essential to the resolution of the (civil) case, a period during which the case stagnated before the Constitutional Court was held against the State concerned.(36) Stagnation for an extensive period before the Courts at whatever level will result in a breach of article 6, even though the delay is in some measure attributable to the applicant himself.(37)
In criminal matters delay may occur where more than one accused must be dealt with and where each blames the other. It may be necessary to run investigations in parallel and to delay trial untl both are completed. Such a course of proceedings does not, in itself, violate article 6.(38)
Two further points may be ventured. The court must determine when the relevant period for article 6 begins. The general rule is that "charge" refers to the official notification given to an individual by a competent authority of an allegation that he has committed a criminal offence. It may in some instances take the form of other measures which carry the implication of such a measure and which, likewise, substantially affect the position of the applicant.(39) The test is thus functional and applies to different systems of procedure since the particular stages of procedure in any one system may well differ from those of another, even within the same jurisprudential family. In Pugliese v. Italy the court holds that the relevant time ran from the date on which the applicant was judicially notified of a criminal prosecution against him.(40) This, of course, refers only to the Italian system. In relation to Belgium, time is said to run from the day upon which a person is charged, but it may, in some cases, begin from the day of arrest, or from the moment when the person was officially notified that he would be prosecuted, or even from the moment when police investigations were opened.(41) In this search regard must be had to the classification of procedural steps in national systems, but these could not, consistently with the Court's jurisprudence taken as a whole, be given decisive weight. Secondly, however, there seems no reason why the relevant period could not be anterior to the opening of formal proceedings provided that, for example, delay in so doing was thought to prejudice the possibility of a fair trial. Witnesses might, for example, have absconded during the period of delay, documents might have been lost, and recollections might have faded. This would, of course, presuppose a degree of overlap with article 5(3) but such an overlap may not be, as such, objectionable.(42)
4. Independent and Impartial Tribunal
Article 6 also provides that matters to which it applies shall be dealt with by an independent and impartial tribunal established by law. Independence and impartiality are distinct values. A body may be impartial even though it is not independent, and, of course, it may be independent without being impartial. There is a considerable body of case law dealing with these matters of which, again, only a sketch can be provided.
We may first deal with independence. In determining whether a body can be said to be independent the Court has regard to: the manner of appointment of its members, the duration of their period of office, the existence of guarantees against outside pressures, and the question whether the body presents an appearance of independence. The absence of a formal recognition of the irremovability of a judge does not in itself imply a lack of independence provided that independence is recognised in fact and that the other necessary guarantees are present.(43) Again, one deals with a cumulation of factors no single one of which is necessarily decisive in any given case. It is noteworthy that a tribunal will not be regarded as fully independent where it is obliged to refer a matter to the executive for a solution to the legal problem before it.(44) The same principle applies where the executive is empowered to overrule a tribunal's decision even though it has in fact never done so.(45) It is the power that counts.
In relation to impartiality the Court distinguishes between subjective and objective impartiality. In De Cubber v. Belgium the Court dealt with these distinct elements of impartiality.(46) In relation to the former, the personal impartiality of the judge is presumed until there is proof to the contrary. In relation to the latter the question is whether the appearance of impartiality is compromised. In order to demonstrate bias the applicant must show not only that he feared bias, but that the possibility of such bias is capable of being objectively justified.(47) These principles will apply to both civil and criminal proceedings although most of the illustrative cases in fact involve criminal proceedings.
One line of cases concerns whether a judge who has dealt with interlocutory matters in a case gives the appearance of bias if he later decides upon the merits. Allied to this is the question whether a judge who has determined a case on the merits detracts from the apparent impartiality of an appellate body if he forms part of its composition when dealing with the case.
In relation to interlocutory matters the principal issue is whether the judge has been obliged to make decisions which go to the merits of the case or at any rate suggest that he must have had a strong view concerning the merits. In De Cubber the same person acted successively as juge d' instruction and as trial judge. The Court referred to several factors including the fact that instruction is secret to conclude that the judge might well, in the eyes of the accused, appear to be in a position which would enable him to play a crucial role in the trial court and, secondly, to have a preconceived opinion which might well weigh heavily at the point of decision. Later cases hold that the fact that the judge made certain pre-trial decisions, including those relating to detention or remand, cannot be taken as in itself justifying fears concerning his impartiality: " . . . what matters is the scope and nature of these decisions."(48) In Sainte-Marie v. France, the Court holds that the fact that the judge earlier ruled on the question of detention or remand does not necessarily imply a lack of objective impartiality. Nor is there necessarily an appearance of bias where the same judge sat on the same case as a member of the chambre d'accusation, determining whether the case should go forward, and of the trial court.(49) With this may be contrasted Hauschildt v. Denmark where, in order to prolong detention, the judge had to be satisfied that there was a `particularly confirmed suspicion' that the accused had committed the offence. The court concluded that:(50)
the difference between the issue the judge has to settle when applying
this section and the issue he will have to settle when giving judgment
at trial becomes tenuous.
And the appearance of impartiality could thus be called into doubt. Under less exigent wording an intermediate decision to accept charges and to hold a person in custody is not equivalent to a committal for trial, but only amounts to a determination that there is a prima facie case and thus does not give rise to an appearance of bias.(51) A judge who merely records questions and answers under letters rogatory, without finding facts, again does not so act as to give the appearance of bias.(52)
These principles may be applied somewhat less rigorously where juvenile courts are concerned. The Court holds that juveniles must benefit from the guarantees of article 6 as well as adults, but there is a current of opinion in the Court which suggests that the developing state of their personality and consequently their limited social responsibility must be taken into account when considering the application of article 6. What this suggests to some judges is that it may be proper to place all matters from pre-trial investigation to the execution of punishment in a single Juvenile Court judge as a means of developing a relationship of trust between the Judge, the offender and his family.(53) This is undoubtedly well meaning, but I would not expect it to be adopted uncritically. It may not be easy to reconcile with article 6 guarantees given that the judge has undoubtedly a punitive role, among others, in juvenile proceedings, and given also the not uncommon reflection that the obverse of the coin of mercy is that of control.
It would seem clear that where in the second of two sets of proceedings the same judge or judges sat as in the first the court will readily find the appearance of bias.(54) It would be surprising were any other decision reached.
A particularly interesting question concerns the composition of the trial jury. In English law it has been held that an accused has no right to a jury having any particular racial composition. But what of the case where the trial judge becomes aware that a juror may be affected by racial bias? In Gregory v. United Kingdom the Commission declared admissible a complaint by a black defendant during whose trial a note was passed to the judge reading: "Jury showing racial overtones 1 member to be excused." The Judge refused to investigate the matter or excuse any juror, but simply directed the jury to proceed without bias.(55) On these facts the Commission's decision cannot occasion any surprise.
5. Rights in the Trial
I turn now to the substantive rights guaranteed by article 6. Some of these are expressly mentioned in the article itself, while others are dealt with, wholly or in part, by implication. The article specifies that everyone is entitled to a fair and public hearing and that this shall take place within a reasonable time.
(a) The notion of "fair and public hearing" does not necessarily require that the hearing be oral. Nor is it incompatible with the taking of measures to protect witnesses against, for example, terrorist threats, or the holding of proceedings in a prison to which the public is not admitted where the offences are committed in relation to imprisonment and where there are serious security concerns which militate against extra-mural proceedings.(56) Nonetheless, the Convention guarantees an adversarial hearing. The requirement of an adversarial hearing may be satisfied by the reception of a voluntary and unequivocal guilty plea in open court.(57) As a general rule, an oral hearing should be granted where one of the parties desires it.(58) The notion of a fair and adversarial trial thus, as a general rule, carries with it certain other rights, for example the right to confrontation with the witnesses, the opportunity to hear them, and to examine them. In Delta v. France the court stated:(59)
As a rule, these rights require that an accused should be given an adequate
and proper opportunity to challenge and question a witness against him,
either at the time the witness makes his statement or at some later stage
in the proceedings.
In Delta v. France, a case of robbery where the accused wished to put identification in issue, but where no confrontation with the witnesses on that issue was accorded to them, a violation was found. The same result was reached on similar facts in Saidi v. France.(60)
Particularly in relation to appeals, it may not be necessary to accord the accused a full oral hearing or an oral hearing at all, provided that the facts have been settled at the first hearing and the only issues before the appellate tribunal are issues of law alone. It may be that an oral hearing is not required, even where factual issues fall to be dealt with by the court. A purely oral procedure would not, however, be acceptable where disputed issues of credibility remain to be dealt with at the appellate level,(61) nor would it be acceptable where fairness may require both the adduction of new evidence before the appellate tribunal and oral argument.(62)
The precise applicability of article 6 will obviously depend upon the trial and appellate structures of any given State since it is these which will determine what range of issues are open at any given level.
In principle all evidence must be adduced in the presence of the parties at a public hearing with a view to adversarial argument. This does not mean that a statement from a witness must always be made in court and in public if it is to be admitted in evidence. In terrorist cases it may be acceptable to screen the witness from the defendant's view and that of the public provided that the defence is not deprived of an adequate and proper opportunity to question the witness.(63)
(b) The concept of a fair and public trial does not necessarily preclude trial in absentia. In general, the accused must, however, be permitted representation by counsel should he so wish. This principle appears under both article 6(1) and article 6(3)(c) The Court holds that while in criminal matters it is of capital importance that the defendant appear both at trial and at an appeal which is by way of a rehearing, it is also of crucial importance that the defendant be adequately defended in such proceedings, and that in general this latter interest must prevail. It follows that counsel who attends the trial or appeal for the purpose of defending an absent accused must be permitted to do so, and not be balked of his opportunity by a mere formalistic objection. (64)
(c) The notion of fair trial in its application to criminal law incorporates three closely related, albeit distinct, principles. These are: that the accused be presumed innocent until proven guilty, that the State bear the burden of proof on the issue of guilt or innocence, and that the accused be not obliged to incriminate himself. This last issue seems likely to produce some interesting case law, both in the immediate future and thereafter.
The presumption of innocence is explicitly provided by article 6(2). Certain cases have elaborated the principle. In Barberà, Messegué and Jabarda v. Spain, the Court holds that the presumption of innocence will be violated if, without the accused having previously been proved guilty according to law, a judicial decision concerning him reflects the opinion that he is guilty.(65) Subsequently, the court holds that the presumption of innocence may apply to a situation where the applicant has not been charged with an offence, but where the issue of criminality arises as a collateral matter in other proceedings.(66)
The use of presumptions has not attracted the elaborate case law characteristic of common law systems. The court concludes that presumptions of law and fact do not, as such, violate article 6, but States are required to confine them within reasonable limits which take account of the importance of the issues in question and which respect the rights of the defence. The task of the court is to determine whether a presumption in any given case was applied in a measure consistent with the presumption of innocence and the concept of a fair trial.(67) This obviously allows a good deal of latitude in the use of presumptions arising from particular facts, for example the principle of English law that a jury may conclude that a person found in possession of goods recently stolen is either a thief or a handler of such goods.(68) It would not allow the entire subversion of the principle that the burden of proof of guilt is throughout on the prosecution for example by providing that a lack of explanation by a suspect of suspicious circumstances could of itself suffice to convict him of an offence. It may be surmised that this principle will be further elaborated by the Commission and the Court in the years to come.
One such elaboration occurred in Murray v. United Kingdom.(69) This concerned Northern Irish legislation (later replicated in England and Wales by virtue of sections 34 - 38 of the Criminal Justice and Public Order Act 1994) which permits specific inferences to be drawn against a suspect who fails to mention to the police when questioned facts which he later relies upon in his defence, which permit inferences to be drawn from silence at trial, and which permits inferences to be drawn from a suspect's failure to account for distinctive markings on his clothes. While this legislation does not, as such, abridge the right to silence, it undoubtedly burdens the exercise of that right. It does not, however, permit guilt to be inferred from silence alone and no adverse inference can be drawn against the suspect until the prosecution has established a prima facie case against him at trial.
The Court concluded that the accused had not been denied a fair trial by virtue of these provisions. It held both that he could maintain silence and that he remained a non-compellable witness. The presence of a certain level of indirect compulsion could not, of itself, be decisive against a fair trial. The Court noted that the police were obliged to inform the accused of the possible effect of silence on his part, that silence itself could not establish guilt, that in any event only common sense inferences could be drawn against the accused, and that the judge had a discretion whether to permit inferences to be drawn. The scheme, furthermore, did not affect the burden of proof.
This conclusion cannot be seen as surprising. The scheme in question gave to the Judge no more power than Judges in many European systems possess, that of freely assessing the evidence having regard to all the circumstances including the manner in which the accused behaved or had conducted his defence when evaluating the evidence.
The most interesting developments concern the right to silence in the light of Funke v. France.(70) Even before Funke there were intimations that issues concerning the right to silence might fall under article 6.(71) It might have been thought, nonetheless that the right to silence fell, not under article 6, but article 3, since one of the arguments against abridgment or denial of the right to silence is the denial of free choice to the suspect which that implies.(72) The Court's decisions. whilst not challenging the applicability of article 3 to confessions and incriminating statements obtained by torture and oppression, go further in that they deny the fairness of the trial itself where evidence obtained in violation of the right to silence is adduced. This is yet another indication that the Commission and the Court view the trial as the culmination of an adversarial procedure, the fairness of which may be assessed as a whole in the context of article 6.
Here, it may be said, the inquiry begins, for the court in Funke said little about the substantive content of the right.(73) Funke, indeed, is difficult to interpret. The court expresses itself in terms which might be thought Delphic. Funke was convicted for refusing to disclose and produce documents asked for by the French Customs authorities. The context was, apparently, one in which criminal proceeding against him were in train, and Funke complained that he was being made to incriminate himself. To a degree the French authorities were engaging in a fishing expedition because they sought to obtain certain documents which they thought must exist although they were not certain of the fact. However that may be, the Court concludes that:(74)
The special features of customs law cannot justify such an infringement
of the right of anyone 'charged with a criminal offence' within the autonomous
meaning of this expression under article 6 to remain silent and not to
contribute to his incrimination.
This decision has not proven easy to interpret. What the special features of Customs law may be was never elucidated. Pannier concludes that the decision is not restricted to forbidding the administration from compelling the production of documents of the existence of which it is not certain. He concludes that offenders will more readily refuse to produce documents containing compromising statements and that the Customs authorities will be deprived of a not insignificant weapon in the fight against fraud.(75) Garnon and Garnon conclude that the decision is limited in effect to instances where criminal proceedings have been brought.(76) The significance of other matters mentioned by the Court such as the fact that the documents could have been obtained by other means is difficult to assess, but it must surely be noteworthy that the proceedings taken against Funke were for the specific purpose of compelling him to provide the evidence which would convict him of exchange control offences. However this may be, the issue of self-incrimination and fair trial was dealt with by the Commission in the case of Saunders, and this case is now before the Court.(77) The Commission itself, in addressing the Court in Saunders, construed Funke as holding that it is a violation of article 6 to punish a person for failing to incriminate himself, and contended that the same principle extended to postulate a violation of article 6 where a person does speak and later finds that his interviews were used against him in subsequent proceedings.(78) Saunders involved a bitterly contested takeover battle in respect of which Saunders and others were subsequently convicted of criminal offences. Before criminal charges were actually brought, Saunders and others were required to attend before Inspectors appointed under the Companies Act 1985, there to produce documents and answer questions relating to the companies' affairs on pain of penalty. The relevant United Kingdom legislation provides no protection against self-incrimination.(79) Whether and to what extent Saunders was compelled to incriminate himself and whether he actually believed that he was saying anything incriminating are issues upon which it would not be proper for the author to comment.
The wider legal issues which the context raises are, however, of considerable importance, especially to a system like the British which does not leave such matters as corporate governance to laisser-faire but which recognizes an element of public interest in the fair and honest management of the industrial, commercial and financial sectors of the economy. The companies investigation system as such cannot be challenged under article 6 because the Inspectors' functions are essentially investigative but neither determine rights nor are directly decisive for rights.(80) The essential issue in Saunders concerns the use to which compelled answers may be put. A further issue in the case concerns whether the United Kingdom government wrongly delayed charging Saunders until it could wring the last bit of evidence from him, since protections against abuses of power exist in normal criminal procedure and especially against the reception of unfairly obtained evidence.(81) It may parenthetically be noted that the English Court of Appeal found, after an elaborate analysis of the facts, in a judgment as yet unreported, that this point was devoid of merit.(82)
The Commission concluded that the Court, in Funke, found that the right to silence and, as well, the privilege against self-incrimination, are an inherent part of the protection given to an accused under article 6 para.1.(83) Thus, a person is protected in the context of criminal proceedings, from being forced to make incriminating statements under pain of penalty. The ability of the accused to defend himself is undermined if the accused is under compulsion to incriminate himself. The Commission found (without, it must be said the benefit of a factual analysis as thorough as that of the Court of Appeal) that Saunders was compelled to incriminate himself, and that the incriminating material "furnished a not insignificant part of the evidence against him at trial."(84)
These are issues with which the Court must deal. Saunders is limited to the subsequent use of compelled oral statements. The potential range of legal issues to which litigation concerning the right to silence may give rise is, however, wide indeed. It is singularly important for States whose governments react not only against fraud but against corporate and commercial mismanagement as well, and which employ inspection machinery to elucidate the affairs of commercial bodies and, more broadly, practices.
The following issues seem pertinent for the future, whatever the court's decision in Saunders may be: first, is a regime of compulsory interrogation without the benefit of the right to silence or, as importantly, given that certain persons answering questions may only be thought of initially as witnesses, the privilege against self-incrimination, violative of article 6 of the Convention as such? It cannot be said that there is any universal agreement that the categoric American model should prevail as an obligatory world standard. Secondly, if such regimes are not, as such, impermissible, is a person protected against the use in later criminal proceedings of answers which he believed to be exculpatory but which change their colour as a result of the accused's testimony at trial or the testimony of other witnesses?(85) How should this be achieved? After all, a statutory compulsion to answer can live alongside an exclusionary rule based on unfairness, at any rate if that rule excludes answers given after criminal proceedings as such have started. That was the view taken by Mr. Schermers, dissenting, in Saunders. It may indeed be possible for such regimes to co-exist even if the discretion available in the criminal proceedings extends to abuses of power at the administrative investigation stage which are intended to compromise the person in later criminal proceedings. Thirdly, could incriminating answers be used only in cross-examination where the accused gives contradictory evidence on oath? Would this differ, functionally, from the use of such answers to found a later charge of perjury, a recourse which common law systems generally admit (Continental systems, it will be recalled, do not swear the accused as a witness). Fourthly, even if a rule against self-incrimination or at any rate a measure of protection by way of an exclusionary rule were required, would this necessarily have to extend to insulate the person from the later use of documents or other evidence obtained by the interrogation process? Here, it should be remembered that such documents may well be documents of the company under investigation and not the property of the person who is required to produce and explain them. Even in the American system, whose simplicities cast a long shadow, the production of documents belonging to regulated industries may be required for administrative purposes and these may be used in evidence in later criminal proceedings although they contain incriminating annotations by the person who made or produces them.(86) Canada distinguishes for derivative use purposes between documents which could in any event be seized and those which could not, and the Canadian Charter of Rights and Freedoms exhibits certain similarities to the European Convention on Human Rights.(87) Australia has devised a web of common law protections.(88) The issues noted above will at some time have to be addressed. A number of alternative solutions present themselves and it cannot be said with certainty how far the protections of article 6 will extend.
(d) Equality of arms and adversariness
The notion of equality of arms is again implicit in, albeit only one feature of, the wider concept of a fair trial. Indeed, the principle of equality of arms is an essential guarantee of properly adversarial proceedings.(89) Equality of arms implies many things, for example, that a person charged with a criminal offence shall be informed of the facts alleged against him and their legal classification (though this is contained explicitly in article 6(3)(a);(90) that he be given adequate time to prepare his case;(91) that a party must be able to put forward his arguments in conditions such that he is not put at a considerable disadvantage in relation to the other side;(92) that he be given the opportunity to have knowledge of and comment on the observations filed and evidence adduced by his adversary;(93) and that he be given access to all material evidence held by the prosecution authorities which bears on his guilt or innocence.(94)
Finally, we may mention the obligation of national courts to give reasons
for their decision (or full jury instructions in systems which rely on
the opaque verdict). This is a necessary pre-condition to the mounting
of any effective appeal or review procedure and it is fully guaranteed
under the Convention. It does not, however, require that a detailed answer
be given to every issue in the case.(95)
6. The Right to Counsel
The right to counsel is expressly guaranteed by article 6(3)(c) but it is also implicit in article 6(1). This latter point is important because article 6(1) applies to both civil and criminal proceedings whereas article 6(3)(c) applies only to criminal proceedings. In the latter context the accused's right is to defend himself in person or by legal assistance of his own choosing, or if he lacks means, to be given legal assistance free when the interests of justice so require. This guarantee applies at all stages of criminal proceedings to the extent that it is necessary to ensure a fair trial. It thus applies to court procedures before trial, `if and in so far as the fairness of the trial is likely to be seriously prejudiced' by a failure to assign counsel, to the trial itself, and to appeal and review.(96) It follows also that there is a right to counsel and to privileged access between the individual and counsel in order to determine whether proceedings should be commenced, even against the State, and that a denial of access by, for example a prisoner to counsel, is a violation of article 9(3)(c).(97)
Where legal aid counsel are to be appointed, the number of counsel and their identity may be determined by the court which must have regard to the competence of counsel and, in respect of numbers, the complexity of the case. It follows that the individual may find himself aided by a lawyer who he would not have chosen for himself. It has further been held that he may be required to pay for some or all of the costs of legal assistance where he has the means to do so.(98) It may, parenthetically, be noted that no such payment is required in respect of an interpreter where the guarantee of free assistance denotes an once and for all exemption.(99)
The right to legal aid only extends so far as the interests of justice require. In Monnell and Morris v. United Kingdom in the context of an application for leave to appeal (which the applicants had been advised was hopeless) the Court, in a rather unsatisfactory judgment, held that the parties could have formulated grounds of appeal on the basis of the advice which they had already received, and that in any event, legal aid was not required where advice had already been given that the case was hopeless. This decision may be contrasted with two cases arising from Scotland. Both were cases in which Scottish lawyers had advised that the case was hopeless, in which legal aid was refused, and in which the applicant lost the appeal. The European Court, nonetheless, found that articles 6(1) and 6(3)(c) had been violated.(100) The different result may be attributable to the legal difficulty which these cases presented, that of mounting a challenge to the trial Judge's discretionary ruling that that the trial could continue even though a prosecution witness had spoken in court before proceedings began, to a co-defendant against whom charges had been dropped. Alternatively, but in my submission less persuasively, it may be argued that the length of sentence imposed upon the applicants may have been decisive.(101) Again, in Hoang v. France the court lays stress both upon the seriousness of the consequences for the applicant and the intrinsic difficulty of the issues which a laymen could not be expected to tackle.(102) It certainly follows from these cases that the court will not simply assume that counsel's advice was correct or that legal aid authorities acted rightly in simply deferring to it. In Monnell and Morris the issues were, it would seem, simple. That could not be said of the Scottish cases.
One is bound to ask whether there is not room here for a fruitful interrelationship between national law and the Convention and whether such considerations do not underly the Scotish cases. There would seem to be no reason why a national judge, even in the British system where the Convention is not incorporated into domestic law, should not be guided in the exercise of discretion by emerging norms under the Convention. It would follow that in determining whether the right to counsel was respected could well depend upon the trial court's sensitivity to Convention issues and it may be that in those terms the Scottish cases presented issues of some difficulty to be resolved by national courts when reviewing the Judges's discretion.
III. CONCLUSIONS
This has been a mere survey, an attempt to identify and discuss the principal issues which arise in the interpretation of the fair trial guarantee. From a survey of the, by now voluminous case law under it, a number of interesting points emerge. The first concerns the circumspect, and yet innovative fashion, with which the Commission and the Court have dealt with article 6 matters. It was perhaps inevitable that these bodies would proceed in concreto. Large statements attacking systems and institutions as such might have put the Convention structure under intolerable strain. One has only to look at United Kingdom popular and, occasionally governmental responses to adverse decisions, in order to appreciate the force of that point. By the same token, the Court and the Commission could hardly have left governments to judge the propriety of their actions or have accepted governmental responses that their justice systems were overloaded.
Again, it was to be expected that the Convention would be interpreted as an autonomous instrument. It was perhaps less readily to be expected that the case law would prove to be as innovative and as rapidly evolutionary as it has been. Article 6 might have been interpreted to relate, if not to the trial process alone, at any rate to the fairness of proceedings in court, that is, to the fairness of procedures for the determination of fact and law before the courts at the trial, appellate or review level. In fact, with some misgivings, the reach of article 6 has been extended into pre-trial matters which exhibited characteristics inimical to the trial as a properly adversarial procedure. In so doing some of the lacunae left by articles 3 and 5 have been at least partially filled up.
Such innovation, such evolutionary developments, will doubtless continue. A process of mutual interaction between national law and convention law exists and will continue to develop. It is, of course, clear that decisions under the Convention have forced modifications to national laws among the States signatory to the Convention and will, indeed, force changes to the laws and procedures of countries who wish to participate fully in some of the simplified and accelerated procedures instituted by the Council of Europe. Extradition law is an obvious example. But it is surely not visionary to suppose that improved national procedures may, in their turn, be referred to as the source of higher minimum standards adopted by the Court and the Commission. To take but one example; the English case law on the consequences of failure to record interrogations for the court's ability to determine whether admissions were voluntary and thus admissible may yet prove to be a light to lighten the Court. The future promises to be interesting.
1. DJ Harris, M. O'Boyle and C. Warbrick, Law Of The European Convention On Human Rights, 1995; S. Stavros, The Guarantees for Accused Persons Under Article 6 of the European Convention on Human Rights, 1993.
2. There are, however, studies which trace the influence of the Convention in particular States, for example, LH Leigh, "The Influence of the European Convention on Human Rights in English Criminal Law and Procedure", Eur. Jo. of Crime, Criminal Law and Criminal Justice, vol. 1, 1993, p.3; and for Britain and the Netherlands, Harding, Fennell, Jörg and Swart, Criminal Justice in Europe, 1995, ch. 4.
3. See, for example, B. Ingraham, The Structure of Criminal Procedure, 1987.
4. M. Damaska, The Faces Of Justice and State Authority, 1986.
6. E.g. Buchholz v. Federal Republic of Germany, (1981) A. 42; De Cubber v. Belgium, (1984) 7 E.H.R.R. 236; Hentrich v. France, (1994) 18 E.H.R.R. 440; Schouten and Meldrum v. The Netherlands, (1994) 19 E.H.R.R. 390; Paccione v. Italy, (1995) 20 E.H.R.R. 396.
7. See, in general, M. Delmas-Marty, (ed.), Raisonner la Raison D'Etat, 1989, pp. 405 et seq.
8. Edwards v. United Kingdom, (1992) 15 E.H.R.R. 417; Van de Hurk v. The Netherlands, (1994) 18 E.H.R.R. 481. Similarly, respect must be accorded to decisions of administrative authorities taken on grounds of public policy, for example the substantive aspects of demarcating development plans and conservation areas: Bryan v. United Kingdom, (1994) 18 E.H.R.R. C.D. 20; Zumtobel v. Austria, (1994) 17 E.H.R.R. 116.
9. On the Court's refusal to decide issues in abstracto, see Hauschildt v. Denmark, (1989) 12 E.H.R.R. 266; Fey v. Austria, (1993) 16 E.H.R.R. 387.
10. Barbera, Messegué and Jabardo v. Spain, (1988) 11 E.H.R.R. 360; see also Hennings v. Germany, (1992) 16 E.H.R.R. 83.
11. Air Canada v. United Kingdom, (1995) 20 E.H.R.R. 150 at para. 53; Editions Periscope v. France, (1992) 14 E.H.R.R. 597 at para. 40.
12. Stran Greek refineries and Stratis Andreadis v. Greece, (1995) 19 E.H.R.R. 293; Fischer v. Austria, (1995) 20 E.H.R.R 49.
13. Beaumartin v. France, (1994) 19 E.H.R.R. 485 at para. 28.
14. König v. Federal Republic of Germany, (1978) 2 E.H.R.R. 170, and 469; Kraska v. Switzerland, (1993) 18 E.H.R.R. 188.
16. Schuler-Zgraggen v. Switzerland, (1993) 16 E.H.R.R. 405.
18. Campbell and Fell v. United Kingdom, (1984) A 80; (1984) 7 E.H.R.R. 165.
19. Öztürk v. Federal Republic of Germany, (1984) 6 E.H.R.R. 409; A73 (1984).
20. Deweer v. Belgium, (1980) 2 E.H.R.R. 439.
21. Societé Stenuit v. France, (1992) 14 E.H.R.R. 509; Bendenoun v. France, (1994) 18 E.H.R.R. 54; cf. Air Canada v. United Kingdom, (1995) 20 E.H.R.R. 150 where seizure proceedings and confiscation orders in respect of an aircraft on board which cannabis was found was held not to determine criminal charges within the meaning of article 6.
22. The best known, but ultimately unsuccessful attempt at formal definition in the English literature, is G.L.Williams, "The Definition of Crime" (1955) 10 C.L.P. 107, but that approach which involves assessing what is criminal by reference to the procedure and the courts applicable to it is unsuited to the administration of a supra-national legal order.
24. Tolstoy Miloslavsky v. United Kingdom, (1995) 20 E.H.R.R. 442.
25. Deweer v. Belgium, (1980) 2 E.H.R.R. 439.
26. Funke v. France, (1993)16 E.H.R.R. 297; Ernest Saunders v. United Kingdom, Application No. 19187/91.
28. Tolstoy Miloslavsky v. United Kingdom,(1995) 20 E.H.R.R. 442.
29. Scopelletti v. Italy, (1993) 17 E.H.R.R. 453; Olsson v. Sweden(No.2), (1992) 17 E.H.R.R. 134; König v. Federal Republic of Germany, (1978) 2 E.H.R.R. 170; App. No. 9604/81 v. Germany, (1983) 5 E.H.R.R. 587.
31. Pugliese v. Italy (No.1), (1992) 14 E.H.R.R. 413; Boddaert v. Belgium, (1992) 16 E.H.R.R. 242.
32. Vendittelli v. Italy, (1994) 19 E.H.R.R. 464; Bunkate v. The Netherlands, (1993) 19 E.H.R.R. 477; Boddaert v. Belgium, (1992) 16 E.H.R.R. 242.
33. Beaumartin v. France, (1994) 19 E.H.R.R. 485.
34. App. No. 9604/81 v. Germany, (1981) 5 E.H.R.R. 587.
35. Hentrich v. France, (1994) 18 E.H.R.R. 440.
36. Ruiz-Mateos v. Spain, (1993) 16 E.H.R.R. 505, disappro. Buchholz v. Federal Republic of Germany, (1981) 3 E.H.R.R. 597 at para. 48.
37. Beaumartin v. France, (1994) 19 E.H.R.R. 485.
38. Boddaert v. Belgium, (1992) 16 E.H.R.R. 242.
39. App. No. 9604/81 v. Germany, (1981) 5 E.H.R.R. 587.
41. Deweer v. Belgium, (1980) 2 E.H.R.R. 439.
42. The tests appear to be much the same: B v. Austria, (1990) 13 E.H.R.R. 20.
43. Campbell and Fell v. United Kingdom, (1984) 7 E.H.R.R. 165.
44. Beaumartin v. France, (1994) 19 E.H.R.R. 485; semble this does not refer to matters which all courts conventionally regard as appropriate for executive resolution such as whether a purported State is regarded as sovereign or whether a state of war exists, that is, matters which in American law would be regarded as subsumed under the doctrine of Political questions, the substance of which has its analogues in other systems.
45. Van de Hurk v. the Netherlands, (1994) 18 E.H.R.R. 481.
46. (1984) 7 E.H.R.R. 236; see also Campbell and Fell v. United Kingdom, (1984) 7 E.H.R.R. 165.
47. Kraska v. Switzerland, (1993) 18 E.H.R.R. 188.
48. Nortier v. France, (1993) 17 E.H.R.R. 273.
49. Sainte-Marie v. France, (1992) 12 E.H.R.R. 116.
50. (1989) 12 E.H.R.R. 266 at para. 52.
51. Saraiva de Carvalho v. Portugal, (1994) 18 E.H.R.R. 534.
52. Fey v. Austria, (1993) 16 E.H.R.R. 387.
53. Nortier v. The Netherlands, (1993) 17 E.H.R.R. 273, per Judge Morenilla, concurring.
54. Oberschluck v. Austria, (1994) 19 E.H.R.R. 390 where the point was conceded by national law.
55. App.No. 22299/93, (1995) 19 E.H.R.R. CD 82.
56. Campbell and Fell v. United Kingdom, (1984) 7 E.H.R.R. 165; note, however, that serious prison offences which constitute criminal conduct are now tried in the ordinary courts and not before Boards of Visitors as formerly was the case.
57. R O v. United Kingdom, (1993) 18 E.H.R.R., CD 213. It follows, in the Commission's view, that a court may refuse to permit such a plea to be withdrawn provided that it deals fairly with this issue.
58. Fischer v. Austria, (1995) 20 E.H.R.R. 349.
59. (1990) 16 E.H.R.R. 574 at para. 36.
61. Ekbatani v. Sweden, (1988) 13 E.H.R.R. 504; Fejde v. Sweden, (1991) 17 E.H.R.R. 14.
62. Pardo v. France, (1993) 17 E.H.R.R, 383 at para.49 per the Commission; Ekbatani v. Sweden, (1988) 13 E.H.R.R. 504.
63. X v. United Kingdom, (1993) 15 E.H.R.R. CD 113. Note that in this case the evidence did not, however, implicate the applicant but was rather of a background character. It certainly does not hold that screening is always acceptable as a response to a threatening situation.
64. Palladoah v. The Netherlands, (1994) 19 E.H.R.R.81; Lala v. The Netherlands, (1994) 18 E.H.R.R.507, and see Potrimol v. France, (1993) 18 E.H.R.R. 130 both on the question of finality and its effect on the above rights, and on waiver of rights.
65. (1988) 11 E.H.R.R. 360 at para. 91.
66. Hentrich v. France, (1994) 18 E.H.R.R. 440 at para. 85.
67. Hoang v. France, (1992) 16 E.H.R.R. 53; Salabiaku v. France, (1988) 13 E.H.R.R. 375 where the applicant complained that four different presumptions were applied against him.
68. On this see generally Blackstone's Criminal Practice 1996, para. F 3.28.
69. Case No. 41/1994/488/5770, to date reported in The Times L. R., February 9, 1996.
71. Barberà, Messegué, and Jabarda v. Spain, (1988) 11 E.H.R.R. 360 at para.86.
72. D.J. Galligan, "The Right To Silence Reconsidered", (1988) 41 C.L.P. 68.
73. Funke v. France, (1993) 16 E.H.R.R. 297.
76. Comment, JCP 1993, II, 22073 (Note Garnon and Garnon).
77. Application No. 19187/91, Ernest Saunders v. United Kingdom.
78. Saunders v. United Kingdom, transcript of oral argument 19 February 1996 at p.3 per Mr. Bratza Q.C. for the Commission.
79. Companies Act 1985, ss. 431-453 and especially s. 434(5).
80. Fayed v. United Kingdom, (1993) 18 E.H.R.R. 393 at para.61.
81. Police and Criminal Evidence Act 1984, s. 78.
82. Reg. v. Saunders and others, 27 November, 1995 (unrep.)
83. There is, it should be noted, a tendency to confuse the right to silence with the privilege against self-incrimination which applies only to a witness. For an example, see the concurring opinion of Mr. Loucaides in Saunders v. United Kingdom.
84. Saunders v. United Kingdom, Application No.19187/91.
85. On this see Orkem v. Commission, C.J.C.E. 1989 pl. 3343 where it is suggested that the preclusion is against forcing answers which the enforcement authority believes will be ex facie incriminating.
86. See Shapiro v. United States, 335 U.S.1(1948); Marchetti v. United States, 390 U.S. 19.
87. Reg v. R.J.S, (S.C.C., February 2, 1995).
88. Hammond v. The Commonwealth, (1982) 152 C.L.R. 188; Hamilton v. Oades, (1988-89) 166 C.L.R. 486. There are a number of other relevant authorities.
89. Ruiz-Mateos v. Spain, (1993) 16 E.H.R.R. 505.
90. Gea Catalan v. Spain, (1995) 20 E.H.R.R. 266.
91. Hadjianastassiou v. Greece, (1992) 18 E.H.R.R. 219.
92. Hentrich v. France, (1994) 18 E.H.R.R. 440 at para. 60 per the Commission.
93. Ruiz-Mateos v. Spain, (1993) 16 E.H.R.R. 505.
94. Edwards v. United Kingdom, (1992) 15 E.H.R.R. 417.
95. Hadjianastassiou v. Greece, (1992) 18 E.H.R.R. 219; Van de Hurk v.The Netherlands, (1994) 18 E.H.R.R. 481.
96. On the application of article 6 before trial see Imbriosca v. Switzerland, (1993) 17 E.H.R.R. 441 and note the dissenting judgment of Judge Pettiti on this issue.
97. Campbell and Fell v. United Kingdom, (1984) 7 E.H.R.R. 165.
98. Croissant v. Germany, (1992) 16 E.H.R.R. 135; the facts were unusual in that the applicant, a lawyer, faced criminal charges arising out of his activities as a lawyer in relation to a terrorist group, and one of the lawyers appointed to defend him was opposed to him politically and would have wished to be relieved of his duties in the case.
99. Luedicke, Belkacem and Koc v. Germany, (1978) 2 E.H.R.R. 149.
100. Boner v. United Kingdom, (1994) 19 E.H.R.R. 246; Maxwell v. United Kingdom, (1994) 19 E.H.R.R. 97.
101. See B. Swart, "The Case Law Of The European Court of Human Rights in 1994," Euro. Jo. of Crime, Criminal Law and Criminal Justice, vol. 3, 1995, 281, p. 286.