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International Criminal Justice Standards - Regional Standards

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European Convention on Human Rights. The Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights or European Convention) entered into force on 3 September 1953, and has been ratified by all forty-one member counties of the Council of Europe. Provisions of the European Convention on Human Rights have enjoyed a very high degree of compliance—both because many countries have incorporated the Convention's provisions into domestic law and because the European Court and Commission's judgments have almost always been obeyed.

Fundamental fair trial guarantees are established in Article 6 of the European Convention. Article 6(1) provides that a person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Article 6(1) of the European Convention applies to both "civil rights and obligations" as well as "any criminal charge." Some of the more difficult problems in the interpretation of the European Convention concern the application of Article 6 to noncriminal cases.

Article 6(2) stipulates that a person charged with a criminal offense shall be presumed innocent until proved guilty. Article 6(3)(a–e) addresses many of the same fair trial rights guaranteed in Article 14 of the Civil and Political Covenant. In particular, the accused must be promptly informed of the charges against her in a language she understands; to have adequate time and facilities to prepare her defense; to be allowed to defend herself or receive legal assistance, including free legal assistance if the accused lacks sufficient means and if the interests of justice requires; to examine or have examined witnesses against her; and to have free assistance of an interpreter if she cannot speak the language of the court.

The right to a fair trial holds a position of preeminence in the European Convention, due not only to the importance of the right involved but also to the great volume of applications and jurisprudence that it has generated. More applications to the European Court and Commission involve Article 6 than any other provision of the Convention. The minimum rights enumerated in Article 6(3) are not exhaustive, according to the Commission and the Court. (With the coming into force of Protocol 11 to the European Convention on 1 November 1998, the European Court and Commission have been consolidated into a unified European Court of Human Rights.) The concept has, rather, an open-ended, residual quality, providing ample opportunity, therefore, to infer other rights not specifically enumerated in Article 6(3) within Article 6(1)'s broad protection for a "fair and public hearing."

The European Court and Commission of Human Rights have interpreted the European Convention in light of the cases brought before them and have thus developed the largest single body of international human rights jurisprudence on fair trial and other administration of justice issues. For example, individuals have very frequently raised questions about the right to a speedy trial. The European Court has declared in Moreira de Azevedo v. Portugal, 189 Eur. Ct. H.R. (ser. A)(1990), that the European Convention "stresses the importance of administering justice without delays which might jeopardize its effectiveness and credibility," thus highlighting the importance of the maxim "Justice delayed is justice denied." Article 6(1) guarantees the right to trial within a reasonable time in both civil and criminal proceedings. Article 5(3) provides that "everyone arrested or detained . . . shall be brought promptly before a judge . . . and shall be entitled to trial within a reasonable time or to release pending trial."

In regard to criminal proceedings, scrutiny of the reasonable time under Article 6(1) begins at the moment when "the situation of the person concerned has been substantially affected as a result of a suspicion against him" (Neumeister v. Austria, 1 E.H.R.R. 91 (1968)) and lasts at least until acquittal, dismissal, or conviction, or until the sentence becomes definite (Eckle Case, 51 Eur. Ct. H.R. (ser. A) at 33 (1982)). The European 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 (Bucholz Case, 42 Eur. Ct. H.R. (ser. A) (1981)).

The European Court considers that the applicant is only required to show diligence in carrying out the procedural steps relating to him or her and to refrain from using delaying tactics (Union Alimentaria Sanders SA Case, 157 Eur. Ct. H.R. (ser. A) (1989)). An accused is not held responsible for the delay even if he or she does not request that the proceedings be expedited (Schouten and Meldrum v. The Netherlands, 19 E.H.R.R. 390 (1994)). The European Court has held that the accused is under no duty to be more active and is not required to cooperate actively with judicial authorities in connection with criminal proceedings (Eckle Case, 51 Eur. Ct. H.R. (ser. A) at 33 (1982)).

Moreover, the European Convention imposes an obligation upon states to "organise their legal systems so as to comply with the requirements of [A]rticle 6(1)" (Milasi v. Italy, 119 Eur. Ct. H.R. (ser. A) (1987)). Hence, the European Court found that delays attributable either to a backlog at the Court of Appeals or to the Court of Cassation's desire to hear cases dealing with a similar issue were unjustifiable under Article 6(1) and constituted a violation (Hentrich v. France, 18 E.H.R.R. 440 (1994)). Generally, a long period of inactivity in a case is entirely attributable to the state unless it provides a satisfactory explanation for the delay (Philis v. Greece, 40 Eur. Ct. H.R. (1997).

Another major element of European "fair trial" jurisprudence is the principle of equality of arms between the accused and the public prosecutor. Under that principle the European Court has examined a number of cases dealing with the position of experts in a proceeding. For example, in the Bönisch Case, 92 Eur. Ct. H.R. (ser. A) (1985), the European Court found a lack of equal treatment of the parties because an expert appearing as a witness for the prosecution had a stronger procedural position than another expert appearing for the defense. The witnesses should have been given equal treatment. The European Court further held that Article 6(3), which provides that an accused has the right to examine witness against him or her, is a constituent element of the concept of "fair trial" set forth in Article 6(1). The Court declined to consider a complaint under Article 6(3), but that determination did not preclude it from finding a violation under the more general fair trial grounds of Article 6(1). Each case should thus be examined with regard to the "development of the proceedings as a whole and not on the basis of one particular incident" (Le Compte v. Belgium, 58 Eur. Ct. H.R. (ser. A) (1983)).

In addition to the European Convention on Human Rights, the Council of Europe has also promulgated the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime; the Convention on the Transfer of Sentenced Persons; the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; European Convention on Extradition; the European Convention on Mutual Assistance in Criminal Matters; the European Convention on the Supervision of Conditionally Sentenced or Conditionally Released Offenders; the European Convention on the Transfer of Proceedings in Criminal Matters; the European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes; the European Convention on the Suppression of Terrorism; and several other treaties.

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