WEEK 1: Right to a fair trial & within reasonable time
Ozturk v Germany:
ISSUE: Was article 6(3) applicable in regards to a ‘criminal charge’?
RULES:
Using the Engel v Netherlands Criteria:
1. Classification of the offence under national law.
2. The Nature of the offence
a. Is it applicable to everyone in the country (Y→ indicative of a criminal
charge).
b. Punishment (what goal does the penalty serve? Retributive in effect?)
3. The Nature & degree of the severity of the penalty (as soon as a deprivation of
liberty is concerned e.g. prison sentence, high fine, it is assumed to be a criminal
charge).
*Elaboration: A criminal charge has autonomous interpretation in the ECHR. It is defined
as “An official notification given to an individual by the competent authority of an
allegation that he has committed a criminal offence” → however, other measures that
carry an implication of a criminal charge e.g. interrogation & arrests are also seen as
forms of ‘notifying’.
ANALYSIS:
1. Although the offence was classified as a regulatory offence under national law -
it was criminal in nature.
2. Has punitive character.
a. Is applied to everyone in the country → is not directed towards a given
group.
b. The sanction seeks to punish as well as deter.
CONCLUSION: There was a violation of art 6(3) ECHR.
Venditelli v Italy
ISSUE: Was there a violation of art 6(1)? Specifically → "In the determination of ... any
criminal charge against him, everyone is entitled to a ... hearing within a reasonable time
by [a] ... tribunal ..."
RULES:
Firstly, the ‘period to be taken into consideration’ must be established.
- Start date: begins on the day the person is ‘charged’.
- End date: When the judgement becomes final (within the country).
Criteria for reasonable time:
1. Complexity of the case
2. Conduct of the applicant
3. Conduct of the state
4. What is at stake for the applicant?
*Elaboration: Only conduct by the state constitutes reasonable time being exceeded. If it
is caused by the applicant then the right is not violated.
ANALYSIS:
- This case was not particularly complex.
, -
Delays were partly caused by the applicant → he caused a delay of 6 months and
the whole proceedings lasted 14 months - hence his conduct was substantial.
CONCLUSION: There was no violation of art 6(1).
WEEK 2: Search & Seizures, Arrests & Pre-trial detention
Brogan v UK
ISSUE:
1. Was the applicant’s right to art 5(1)(c) violated? Specifically → “(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 ...;”
2. Was the applicant’s right to art 5(3) violated? Specifically → "Everyone arrested
or detained in accordance with the provisions of paragraph 1 (c) of this Article
(art. 5-1-c) 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."
RULES:
1. Reasonable suspicion ‘presupposes the existence of facts or information which
would satisfy an objective observer that the person concerned may have
committed the offence’ (art 5).
2.
a. First, establish the time spent in detention (before being brought to the
judge for the first time).
b. ‘Promptly’ → max of 4 days normally, and 5 days in exceptional cases
(e.g. concerning terrorism).
CONCLUSION: There was no violation of art 5(1)(c) but there was a violation of art
5(3).
Letellier v France:
ISSUE:
1. Was the applicant’s right to art 5(3) violated? Specifically → "Everyone arrested
or detained in accordance with the provisions of paragraph 1 (c) of this Article
(art. 5-1-c), ... shall be entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to appear for trial."
2. Was the applicant’s right to art 5(4) violated? Specifically → “"Everyone who is
deprived of his liberty by arrest or detention shall be entitled to take proceedings
by which the lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful."
RULES:
Issue 1:
1) Establish the time spent in pre-trial detention
Ozturk v Germany:
ISSUE: Was article 6(3) applicable in regards to a ‘criminal charge’?
RULES:
Using the Engel v Netherlands Criteria:
1. Classification of the offence under national law.
2. The Nature of the offence
a. Is it applicable to everyone in the country (Y→ indicative of a criminal
charge).
b. Punishment (what goal does the penalty serve? Retributive in effect?)
3. The Nature & degree of the severity of the penalty (as soon as a deprivation of
liberty is concerned e.g. prison sentence, high fine, it is assumed to be a criminal
charge).
*Elaboration: A criminal charge has autonomous interpretation in the ECHR. It is defined
as “An official notification given to an individual by the competent authority of an
allegation that he has committed a criminal offence” → however, other measures that
carry an implication of a criminal charge e.g. interrogation & arrests are also seen as
forms of ‘notifying’.
ANALYSIS:
1. Although the offence was classified as a regulatory offence under national law -
it was criminal in nature.
2. Has punitive character.
a. Is applied to everyone in the country → is not directed towards a given
group.
b. The sanction seeks to punish as well as deter.
CONCLUSION: There was a violation of art 6(3) ECHR.
Venditelli v Italy
ISSUE: Was there a violation of art 6(1)? Specifically → "In the determination of ... any
criminal charge against him, everyone is entitled to a ... hearing within a reasonable time
by [a] ... tribunal ..."
RULES:
Firstly, the ‘period to be taken into consideration’ must be established.
- Start date: begins on the day the person is ‘charged’.
- End date: When the judgement becomes final (within the country).
Criteria for reasonable time:
1. Complexity of the case
2. Conduct of the applicant
3. Conduct of the state
4. What is at stake for the applicant?
*Elaboration: Only conduct by the state constitutes reasonable time being exceeded. If it
is caused by the applicant then the right is not violated.
ANALYSIS:
- This case was not particularly complex.
, -
Delays were partly caused by the applicant → he caused a delay of 6 months and
the whole proceedings lasted 14 months - hence his conduct was substantial.
CONCLUSION: There was no violation of art 6(1).
WEEK 2: Search & Seizures, Arrests & Pre-trial detention
Brogan v UK
ISSUE:
1. Was the applicant’s right to art 5(1)(c) violated? Specifically → “(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 ...;”
2. Was the applicant’s right to art 5(3) violated? Specifically → "Everyone arrested
or detained in accordance with the provisions of paragraph 1 (c) of this Article
(art. 5-1-c) 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."
RULES:
1. Reasonable suspicion ‘presupposes the existence of facts or information which
would satisfy an objective observer that the person concerned may have
committed the offence’ (art 5).
2.
a. First, establish the time spent in detention (before being brought to the
judge for the first time).
b. ‘Promptly’ → max of 4 days normally, and 5 days in exceptional cases
(e.g. concerning terrorism).
CONCLUSION: There was no violation of art 5(1)(c) but there was a violation of art
5(3).
Letellier v France:
ISSUE:
1. Was the applicant’s right to art 5(3) violated? Specifically → "Everyone arrested
or detained in accordance with the provisions of paragraph 1 (c) of this Article
(art. 5-1-c), ... shall be entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to appear for trial."
2. Was the applicant’s right to art 5(4) violated? Specifically → “"Everyone who is
deprived of his liberty by arrest or detention shall be entitled to take proceedings
by which the lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful."
RULES:
Issue 1:
1) Establish the time spent in pre-trial detention
