Unravelling Salduz and the EU: Grand Chamber judgment of Beuze v. Belgium on the right of access to a lawyer

This guest blog post was written by Cedric Serneels, Teaching Assistant & Researcher at Institute for European Law, KU Leuven

On 9 November 2018, the Grand Chamber of the European Court of Human Rights delivered its long-awaited judgment in the case of Beuze v. Belgium. In the present case, the Court was confronted with the question when a restriction on the right of early access to a lawyer in criminal proceedings renders those proceedings unfair and thus constitutes a breach of Articles 6(1) and 6(3)(c) of the European Convention. The majority ruled that under the principle established in Salduz v. Turkey a systematically applied general and mandatory restriction on the right of access to a lawyer will only amount to a breach of Article 6 ECHR when it compromises the overall fairness of the criminal proceedings. Accordingly, the mere existence of such a restriction does in itself not constitute a violation of the Convention. In a Concurring Opinion, analysed below, it is asserted that the majority interpreted Salduz in a way that departs from and even contradicts that judgment’s original meaning and that it adopted a much more relative — and thus less protective — approach without sufficient justification. While the Court was unanimous in finding a violation of the Convention, the soundness of its legal reasoning has thus been fiercely contested. Further, it will be argued that this ruling is particularly interesting for EU lawyers as well, as it provides an example of the two-directional interplay between EU fundamental rights law and the Convention. Continue reading

Mutu and Pechstein v. Switzerland: Strasbourg’s Assessment of the Right to a Fair Hearing in Sports Arbitration

This guest post was written by Cathérine Van de Graaf, a PhD student at Ghent University.

In Mutu and Pechstein v. Switzerland, the European Court of Human Rights considered the lawfulness of proceedings at the Court of Arbitration for Sports (CAS) in Lausanne. In its analysis, the Court focussed on three elements: the free acceptance of the arbitration clause by the applicants; the status of the CAS as an independent and impartial tribunal established by law and the absence of a public hearing. Continue reading

Correia de Matos v. Portugal: Fragmented protection of the right to defend oneself in person

Dr. Dorothea Staes (affiliated researcher, The Perelman Center for Legal Philosophy, ULB, Belgium and trainee at the European Commission)

In the Grand Chamber judgement Correia de Matos v. Portugal of 4 April 2018, the European Court of Human Rights (hereinafter: the Court) decided by a majority of nine votes to eight that the right to a fair trial was not violated with regards to the applicant, who was not allowed to conduct his own defence in the criminal proceedings against him. The blog focuses on how this judgement upholds fragmentation between the interpretation of human rights by the Court and the United Nations Human Rights Committee (hereinafter: HRC). It also develops arguments as to why harmony – instead of fragmentation – should have been the preferred option. Continue reading

Tariq v United Kingdom: Closed Material Procedures Green-Lit by European Court

Lewis Graham, PhD Student at Pembroke College, Cambridge.

The First Section Committee recently handed down its Decision in Gulamhussein and Tariq v the United Kingdom (Application Nos. 46538/11 and 3960/12) (hereafter “Tariq v UK”). It acts as a de facto appeal from a UK Supreme Court decision handed down seven years ago, and sees the European Court of Human Rights returning to the thorny issue of Article 6 protections in the context of closed material procedures. The takeaway point is this: the ECtHR has clarified the position of its previous case law, and in doing so has ultimately approved the UK courts’ approach to Article 6 in the context of closed material procedures. Continue reading

Regner v. Czech Republic: has the European Court of Human Rights forgotten the fair trial rights when national security is at stake?

By Andrea Preziosi, University of Birmingham

On 19 September 2017, the Grand Chamber of the European Court of Human Rights delivered a controversial judgment concerning the extent of fair trial rights in relation to the withholding of information on grounds of national security.

Facts

The case began with an application lodged by Mr Regner, a Czech citizen who had worked for the Ministry of Defence in different high-profile posts and had his security clearance revoked on the basis of information provided by the intelligence service. Continue reading

Zherdev v. Ukraine: Article 3 of the ECHR and Children’s Rights at the Stage of Police Interrogation

By Prof. Dr. Ton Liefaard, Professor of Children’s Rights / UNICEF Chair in Children’s Rights, Leiden Law School, Leiden University, The Netherlands[1]

The Zherdev v. Ukraine judgement of 27 April 2017 by the European Court of Human Rights (hereinafter: the Court) further augments the Court’s line of recognising the vulnerable position of children in police interrogation and custody. What is the impact of this recognition on the threshold to find a violation under Article 3 ECHR, and to what extent does the judgement reflect international legal standards relating to children in conflict with the law, and global concerns regarding police violence towards children?

This commentary begins with a brief overview of the relevant facts of the case. It then addresses the Court’s judgement, focusing on the allegations in relation to Article 3 and to a certain extent Article 6 ECHR. It explores the Court’s threshold to assess ill-treatment in the context of children in police custody, and highlights relevant international standards in that regard. This commentary concludes with a final note on the important role of lawyers in preventing and addressing ill-treatment, and the complex issue of children’s waiver of legal counsel. Continue reading

Van Wesenbeeck v. Belgium: Balancing defence rights with law enforcements’ possibilities to apply observation and infiltration methods

By Sofie Depauw, PhD Researcher at Ghent University, Institute for International Research on Criminal Policy (IRCP).

With its judgment in the case of Van Wesenbeeck v. Belgium, the Chamber of the European Court of Human Rights has taken a stance with regard to the scope of defence rights in case of observation and infiltration methods. More specifically, the Court judged that, despite the lack of access to the confidential case file and the applicant’s inability to examine undercover officers, the right to a fair trial had not been violated. According to the Court, the supervisory role of the Indictments Division constituted a sufficient procedural guarantee to compensate for both interferences. Whereas it remains to be seen whether this judgment will hold, as the case can still be referred to the Grand Chamber, it is however interesting to take a closer look at the Court’s considerations in this regard and the dissenting opinion relating to the right to examine witnesses. Continue reading