THE AIRE CENTRE - Rights

As a defendant

The two most important Articles of the Convention in regards to criminal law, are Article 5 and Article 6. More than half of all complaints to the European Court of Human Rights concern these two Articles.

According to ARTICLE 5, everyone has the right to liberty and security of his/her person. It places a total prohibition on a State's power to deprive an individual of his/her liberty except in six clearly defined exceptions. These exceptions include among others

when a person is detained after having been convicted by a court,
when a person is lawfully arrested or detained in order to bring him/her to court or prevent him/her from committing an offence or flee
when a minor is detained in order to bring him/her to court or for educational supervision

When a person is arrested, he/she has a right to be informed promptly and in words and a language he/she understands of why there has been an arrest and what the charges are.

When someone is arrested or detained, he/she must be brought promptly before a judge. There is also a right to trial within a reasonable time, alternatively to be released until the trial starts. The European Court of Human Rights has made clear that a person must be released until the trial unless the State can show that there are "relevant and sufficient reasons to justify detention". Release on bail can be refused if there is a danger that the accused will flee or interfere with the course of justice, or for the prevention of crime and for the preservation of public order.

When someone is deprived of their liberty, he/she is entitled to start proceedings to challenge the lawfulness of the detention. If the court in question finds it is not lawful, he/she shall be released. However, this right does generally not apply to the detention of a person who has been convicted by a court, since the review is already incorporated in the judgment of that court. If the detention is prolonged, there must however be a process to review the lawfulness of the detention at reasonable intervals. This applies for example where there is a lengthy pre-trial detention, where the detention is based on psychiatric grounds or for discretionary life-sentences.

Anyone who is detained in violation of these guarantees provided for in Article 5 have a right to compensation.

Whilst Article 5 concerns deprivation of liberty, ARTICLE 6 concerns the trial itself. According to this Article, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal in the determination of any criminal charge against him/her. This Article applies partly also in civil cases. A fair hearing means for example that

the accused should in principle be allowed to be present at the trial hearing
each party to the proceedings must be given a reasonable opportunity to present his/her case in conditions that do not place him/her at a substantial disadvantage against his/her opponent
the court must give reasons for its judgement although it is not obliged to give a detailed answer to every argument put forward by a litigant

How long is "reasonable" depends on the circumstances of the case and there is no absolute time limit. When the European Court of Human Rights decides whether this requirement has been fulfilled, it has regards to (1) the complexity of the case, (2) the conduct of the applicant and (3) the conduct of the authorities.

For a court to be independent within the meaning of Article 6, it needs to be independent of both the executive and of the parties to the case. Impartiality means lack of prejudice or bias.

Article 6 also makes clear that everyone who is charged with a criminal offence shall be presumed innocent until proved guilty. This means, that the members of a court shall not start with the idea that the accused has committed the offence he/she is charged with.

In addition, Article 6 guarantees everyone who has been charged with a criminal offence the following minimum rights:

to be informed promptly in a language he/she understands about the accusation
to have adequate time and facilities to prepare his/her defence
to defend himself/herself in person or through legal assistance
to receive free legal assistance if he/she does not have the means to pay for it and the interests of justice so require
to examine witnesses against him/her and to obtain the attendance of witnesses under the same conditions as witnesses against him/her
to receive free assistance from an interpreter if he/she can not understand or speak the language used in court

Another Article which is relevant in the context of criminal law is ARTICLE 7, which includes the principle of "no punishment without law". This Article effectively prohibits retrospective convictions or punishment.

Finally, ARTICLE 8, the right to respect for private and family life, home and correspondence, can also be relevant in this context. The European Court of Human Rights has stated that a prisoner has the right to correspond with his/her lawyer almost without any interference. Prison authorities may censor non-legal correspondence, but only if it is prejudicial to security or of a criminal nature.

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