European
Court of Human Rights
The
agreement of Human Rights of the Council of Europe established the European
Board of Human Rights and the European Court of Human Rights, this way it has
completed the existing legal remedy system in the member states with an
international, appealing forum which is above states. The minutes 11
complementing the European Convention placed the permanently working Court of
Human Rights instead of the Board and Court.
The
Court, in the majority or the Council of Europe owing direct force, is the
highest explanatory forum of the Agreement which decisions often lead to the
modification of law, practice of the law. Thus its decisions in connection with
the defence lawyer (the defence) can be a guidance, and – in my opinion –
should be a guidance for EU compatibility, making efforts to legal
harmonisation[1]. That’s why
judicial decisions in the aspect of criminal defence in the past decades
(reaching nearly a thousand judicial decisions and approximately fifty thousand
board decisions)chronological survey can be useful – naturally not
comprehensive nature - both for the
examination of the current Hungarian regulation and for the creation of the
national (or foreign regulations) de lege ferenda suggestions[2].
The
analysis of the decisions of the Court in connection with the defence lawyer:
The decisions connected to the defence lawyer[3]can
be classified by several aspects. Partly on the basis of infringed sections of
the Agreement where section 5 (right for freedom and safety), section 6 (fair
proceedings), section 8 (honouring private and family life), section 10
(freedom of speech) and section 25 (personal right for complaint) belong.
Partly – and I find it more important and it should be studied more thoroughly
– from the aspect of infringed human rights.
For clearer
understanding the components of certain human rights can be classified as
follows:
I. Section 5: right for freedom and safety
Including
emergency provisions emphasising arrest
(including custody).
1 circumstances of detention
2 excluding supplementary
institution
3 infringing reasonable period
4 lack of judicial decision
2 presumption of innocence
Emphasising: 3 equality of arms
Consisting: a) right for defence lawyer, legal
representative and effective defence
b)
presence of the defence
c) enough time for the
preparations for the defence
d)
learning the case by the defence
e)
defensive right for reflecting
f) balance of experts (prosecutor - defence)
g)
defensive legal remedy
III.
Section 8: respecting private life (private secret)
1 not controlling correspondence between the
defence lawyer and accused.
2 avoiding tapping the defence lawyer’s phone
calls
Including:
1 right for effective remedy (section 13)
2 right for personal complaint (section 25)
The
characteristics of the groups:
ad.
I. (freedom and safety)
The right for freedom and safety concerns the defence
lawyer in so far as it is one of the most important human rights, in case of
infringing freedom one can almost always meet a defence lawyer in the
proceedings. The decisions themselves are firstly about the rights of the
accused but they touch the presumption of innocence, the burden of proof, the
right for self-determination of the accused. This happened in the case against W.
SWITZERLAND during which the Court put it down in its judgement (26.01.1993.)
that the acting authorities didn’t infringe the reasonable deadline, which is
in the 3rd point in section 5 of the Agreement, since the dragging
of the controversial detention was caused primarily by the complication of the
case and the petitioner’s attitude of refusing the co-operation with the
authorities.
Judge Pettiti attached
his dissenting opinion to the judgement differing on the decision, whose
essence is that the burden of proof can’t be reversed and the detainee can’t be
expected to prove that he won’t escape which proof is practically impossible.
He made it clear that construing section 5 and the custody proceeding the
judgement. We have to consider that the freedom, the rule and the custody are
exceptions and the custody proceeding the judgement can’t harm the presumption
of innocence. This presumption refers not only to the fact that the judge
shouldn’t consider the accused guilty or he can’t be presented as guilty one
before a third person but it also concerns the circumstance that possibility
should be given to the accused to deal with his own situation as an accused
until the proceedings. As an extreme case a person, who admits his being
guilty, must be given possibility to stay a free man, to control his
professional and family life and to take the necessary steps after being
accused. The custody proceeding the judgement can’t be adopted as an early
punishment; it cannot either reflect the judge’s feelings or opinion about the
guiltiness of the accused.
Refusing the
co-operation is not suitable for verifying the lengthening of the custody for
such a long term. The accused has the right for taking the risk of his negative
behaviour during the investigation which can be disadvantageous during the
proceedings.
During the previous
investigation the accused has to stay free as a rule. The Agreement’s 3rd
point of section 5 includes the fight for freedom until the proceedings and
wisely allows that this freedom should be attached to the guarantee of the
presence in the proceedings.
The detailed description
of the case also raises the theoretical question whether what kind of role the
certain judicial opinion (which were set against decisions) can have or has for
the tendency should be followed by the certain states. Surveying several
decisions and regulations, in my opinion personal arguments can’t be
disregarded though they’re not rules but as theoretical reasoning can be
considered when creating rule parts of certain states.
Obviously there can also be overlaps between the
projections of certain Human Rights’ decisions such as in the judgement of KAMPANIS
GREECE (13.07.1995.) where the Court stated the petitioner’s right for
freedom and safety (Agreement section 5) was infringed by not allowing the
personal participation before the Prosecution of the Court of Appeal making
decision in the question of temporary arresting in the proceedings.
The right for presence and personal freedom are
interpreted in fair procedure. The overlap is confirmed by the fact that the
decision mentions that the equality of arms, explained also in the fair
procedure (section 6), must be enforced not only in the main stage but in the
proceedings of custody (as the prosecutor was present but the accused wasn’t).
The accused one (defence) has to be
given the possibility for replying for the prosecutor’s proposal in this
special proceedings.
Similar joining can be found in the case of BENHAM
UNITED KINGDOM (closed in 10.06.1996.). Here the Court stated again that
the British authorities didn’t infringe the Agreement’s 1st point of
section 5 (right for freedom and safety) by the fact that the petitioner was
kept confined and sentenced to custody by the magistral Court because of not paying the poll tax. On
the other hand the 1st point in connection with 3rd/c in
section 6 was infringed by not ensuring the right of the petitioner for using
the help of any legal representatives before the magistral Court taken place in
the trial.
The petitioner, in the
proceeding of not paying the poll tax, didn’t get the help of a defence lawyer,
though before the opening of the trial, he asked for one in the Green Form
Scheme and at the same time the magistratians could have had the opportunity to
appoint a solicitor, who would have performed the defence at the expense of
‘ABWOR’ (a legal representative service) if he had been asked for that.
The Court also
examined whether the interest of the jurisdiction had demanded that the
petitioner employ a free legal representative before the magistral Court.
The Court thought that
in the case when the deprivation of liberty can occur as a sanction, the
interests of the jurisdiction demands the co-operation of the solicitor.
This latest reasoning
support my first lines, naming that one of the outstanding human rights –
freedom itself demands the solicitor’s existence (free solicitor if necessary)
in the procedure as the possible law infringement can be so serious that this
element cannot be avoided.
The directions of the ECHR
also confirms my de lege ferenda suggestions and my theoretical view point that
in the Hungarian regulations in case of custody (and not only the arrest) that
the participation of the solicitor should be required.[4]
In the judgement of AERTS
BELGIUM (30.07.1998.), the Court also stated the infringement of section 6
besides the infringement of the Agreement’s 1st point of section 5
(right for freedom and safety) because the insane perpetrator was kept in the
psychiatric department of law enforcement institution which was unsuitable for
compulsory treatment for a long time. Since the Judicial Office of Legal Aid
denied the appointment of a legal representative so the petitioner couldn’t
turn to the Nullity Chair.
Among the decisions
investigating the importance and proportion of detention, in the case of YAHIAOUI
FRANCE (20.01.2000.), the Court stated the infringement of the reasonable
period, explaining that everybody has the right for being given a
judgement in a reasonable period or
being released during the proceedings, which in the case of CABALLERO UNITED
KINGDOM, the infringement of section 5 in 2000 was stated, because the
arrested petitioner wasn’t allowed to be released on bail till the proceedings
because of having a criminal record.
In the case of BARABNOWSKI
POLAND, the infringement was also stated by the Court, since the petitioner’s
detention was maintained without any judicial decisions, and at the same time
the judgement of the petition for being released was dragged on.
ad.
II. (fair proceedings)
It can also be seen
from the initial chart that the most extensive licences are attached to fair
proceedings explained in section 6,and its infringement is the most frequent in
connection with the defence lawyer.
The ARTICO ITALY case, which might have been mentioned and quoted the most since it was risen, also belongs to this group, when the Court stated unanimously the infringement of the right for defence – the 3rd paragraph, point c of section 6 - in its judgement (13.05.1980.) as the petitioner was neither given a defence lawyer , nor an effective defence in the proceedings before the Nullity Chair.[5]
The concerned Italian
government argued that the complaint about the lack of the solicitor shouldn’t
have been accepted, as Artico didn’t use the possibilities of the legal
remedies. Since Artico didn’t give a report about the behaviour of the assigned
counsel sent from the Law Society, namely that due to the assigned counsel
being involved in too many activities he couldn’t undertake further defence,
and he didn’t even provide for real substitution. According to the government
Artico didn’t take any steps for that any of the institutions, e.g. the Law
Society should force the assigned counsel to accomplish his duty and it didn’t
submit any complaints for either the civil right action or disloyal defence.
The Court rejected the
Italian government’s argues, for example that the assignment of the defence
lawyer completes itself the Agreement’s regulations. It emphasised: the
Agreement demands effective defence, which
can’t be completed simply by assigning a counsel, since the assigned counsel
can die or can get ill seriously, he can be hindered permanently by his
circumstances, or he can keep himself away from his duties. The authorities, if
they are informed, are to solve the substitution of the defence lawyer, or they
should force him to fulfil his duty. In this present case Artico didn’t have a
share in an effective defence before the Nullity Chair.
The point ‘c’ in the 3rd
paragraph in section 6 makes compulsory the assignment of a counsel only if the
interests of the jurisdiction demand it. In contrast with the government , the
Court thought that in Artico’s case, in the interest of the jurisdiction, a defence lawyer should
have been needed. A qualified Defence lawyer would have dealt example with the
question of lapse more effectively, thus the lack of the defence lawyer caused
a real harm for the petitioner.
The Court emphasised
that not all the faults and omissions, committed by the assigned counsel, can
be brought against the government. In this present case, the Agreement only
excepted from the authorities that they should have provided for the
substitution of an assigned counsel or force him to fulfil his duty.
I emphasise among the
complex messages of this ever since guiding judicial decision that not a single
state can refer to the accused one’s omission in the cases when state
obligation is existing and not even in case of assuring effective defence. It
is considerable in the course of further changing of the Hungarian regulations,
which I think is needed, when a real free of charge and effective defensive
institution has to be created, in this case the Hungarian state cannot either
refer to accused one’s omission or other argues as reasons for wriggling out of completing regulations.
In the judgement of PAKELLI
GERMANY (25.04.1983.), the Court stated the same breaking of norms after
the German Federal Supreme Court denied the assignment of a free counsel for
the cassative proceedings of the accused one’s case. This way the adversary
system feature didn’t occur besides the prosecutor at present as a lack of
defence lawyer.
The lack of effective defence
was stated by the Court in the case of GODDI ITALY (09.04.1984.), as the
absent detainee’s defence lawyer wasn’t informed in the course of the
proceedings before the Court of Appeal of Bologna, so he didn’t take part in
that either.
Not only the absence of the original defence lawyer
contributed to the lack of an effective defence but the shortage of time of the
assigned counsel, assigned all at once for the accused, on the Appeal Proceedings.
The new defence lawyer didn’t have either the time or the possibility to study
the documents of the case, to prepare the plea, and to get in touch with the
accused.
In connection with the
experts using the evidence in the case against BÖNISCH AUSTRIA, the
Court stated in its unanimous decision (06.05.1985.) that the principal of
‘equality of arms’ issued from the requirements of fair proceedings since the
expert assigned by the authorities was emphasised against the expert of the
defence.
In the case of POITRIMOL FRANCE the Court didn’t
consider the procedure to be fair, as the Court of Appeal made his decision
without the accused one’s report in the case, furthermore the Nullity Chair
refused the complaint of the petitioner with the reasons that the person who
didn’t obey the warrant for arrest, is not entitled for charging a defence
lawyer and using legal remedy against the judgement.
The decision made against KEROJARVI
FINNLAND (19.07.1995.) belongs to the right for knowing the case also in
the scope of ‘equality of arms’. The Court stated the infringement of the law
because the criminal case for compensation being in progress at the Finnish
Supreme Court, the petitioner proceeding without a solicitor couldn’t study the
documents and he didn’t take any steps to do so.
The Court have already
suggested both in this and other cases that the main rules of fair proceedings
are in force not only in the criminal procedure and it’s true vice versa: the
basic human rights are ‘independent from the procedure’.[6]
At the same time it is obvious that the expectation enforced is valid before
any courts. It can either be a procedure before a Court of first instance (e.g.
English magistrative) or a Court of Appeal of second instance or a Nullity
Chair of third instance or a Supreme Court.
The equality of arms is also
infringed by the restriction of the defence lawyer’s rights for comments; In
the judgement of NIDERÖST – HUBER SWITZERLAND (18.02.1996.) the Court
declared the infringement of law since the petitioner wasn’t informed about the
Court of Schwyz Canton handed in remarks to the Federal Court and this way he
couldn’t make comments before passing the judgement of the Federal Court.
The fair proceedings
involve the litigants’ right for knowing all the presented evidences and handed
remarks and making comments for them.
The part of the judgement, which refers to the argument
– is rather remarkable -, that the Court didn’t consider the fact that the case
was a civil action, as the case law of the Court developed in connection with
that the requirements derived from the right for adversary system procedure are
the same in civil and criminal (administrative and magistrative) cases.[7]
The judgement of VACHER
FRANCE (17.12.1996.) case is joined also to the remarks, in which the Court
declared the infringement of the law because in the procedure before the French
Nullity Chair – as a Forum of legal remedy of third instance – there wasn’t a
legal deadline to hand in the preparatory documents, the petitioner wasn’t
informed about the day of the proceedings either. This way he was deprived of
the opportunity of the real and effective defence.
Here the Court also
emphasised what I’ve already stressed in connection with the Artico case that
the state should take care of the guarantees of the accused to be carried out.
So the fact that the detainee in the criminal case is to be informed about the
beginning and the end of certain deadlines, cannot be compared with the
obligation towards the real enforce of the guarantee of section 6 by the
contracting states.
In the judgement of MANTOVANELLE
FRANCE (18.03.1997.) the Court confirmed its viewpoint that the right for
fair trial is independent from the procedure namely it’s valid in other
procedures too, it means also before the administrative Court. In this case the
medical expert opinion assigned by the administrative Court wasn’t prepared in
agreement with the principal of adversary system procedure, since the
petitioner and his solicitor didn’t get any information about the time of the
expert’s actions. Furthermore they didn’t make them possible to take part in
the questionings, and the expert’s opinion referred to several documents which
couldn’t have been examined.
It has to be ensured
that all the parties should be given the chance to express their opinions about
all the evidences and remarks which were mentioned in the case to influence the
decision of the Court.
Taking into consideration
that other procedural guarantees in the 1st point of section 6,
similarly to the ensuring the principal of adversary procedure refers only to
the judicial proceedings and not in general. From this the abstract principal
can also be drawn that in the case of an expert assigned by the Court, the
participation on the interviews made by the expert must be made possible for
the parties and the documents considered by the expert also must be shown. It
is essential to ensure the proper participation in the procedure before the
Court to the parties.
It is important to
point out that the adversary system is ordered by the practice of the Court to
the judicial stage, it cannot be enforced indicated above and in a complete
way. The references of the accused and the defence – either Hungarian or
foreign – are unfounded and cannot meet with success on the international forum
either. This way the adversary system shouldn’t be fitted in any preparatory
procedural legal regulation.
On the same day the Court
also passed another judgement where the requirement of fair procedure was
infringed in the magistral procedure. What happened in the case of FOUCHER
FRANCE case was that the access to the criminal documents was denied,
refusing to hand out the included documents concerning the petitioner in the
summary jurisdiction before the police court where the petitioner defended
himself. This way the petitioner’s right for defence and the principal of the
equality of clients was broken.
It turns out again
from the reasons that the principals of the equality of clients and the
equality of arms refer to the judicial stage. The court referred to the fact
that since the petitioner was brought to a normal court without preliminary
investigation, the question of ensuring the secrecy of the investigation didn’t
arise. This could have hindered the enforcement of the law.
I also emphasise in
this decision that according to the Court it was important for the petitioner
to have access to the file of his case and to get a copy about the included
documents to be able to question the parts concerning him in the official
report. As he didn’t have such an opportunity the petitioner was not able to
prepare his proper defence and the principal of the equality of clients wasn’t
enforced.
Getting a copy is an
important part which includes the explanation that it is the person’s due to
get free copies in the procedure if he has an assigned counsel. Besides the
lack of ensuring an effective and free defence lawyer by the state, the
Hungarian regulation doesn’t meet these human rights’ requirements because of
the anti-constitutional regulation of authorising the copies, and, in my
opinion also because of the infringement of the agreement.[8]
The right for making remarks
and replying was infringed in the case of VAN ORSHOVEN BELGIUM , the
Court stated in its judgement (25.07.1997.) that the fact that the petitioner
didn’t have the opportunity to reply to the motion of the prosecutor in the
disciplinary procedure before the Nullity Chair, was against the law.[9]
The fair proceedings
and the equality of arms theoretically mean the parties’ opportunity to know about
all the attached evidences or remarks recorded in the minutes and to have the
possibility to make remarks.
In the judgement against BELZIUK
POLAND (25.03.1998.), according to the Court’s point of view the
Agreement’s1st and 3rd/c points of section 6 were infringed, because
against the wish of the petitioner he couldn’t take part in the appeals
procedure, but the prosecutor was present and an assigned counsel wasn’t sent
officially to him either.
In this case the
petitioner’s right for being present on the trial was infringed and also the
equality of arms because this principal and the right for adversary procedure
demand that the petitioner should be authorised for the participation on the
trial and to dispute the prosecutor’s minutes. The inequality couldn’t be
corrected not even if the petitioner had sent his remarks in a written form to
a local court, considering the fact that the prosecutor was present on the
trial and the seriousness of his minutes.
The examination of the
decision raises the thought(and also the demand) that in those particular cases
where a prosecutor is involved and is present, the judicial procedure can’t be
held without a solicitor. Practically the presence of the prosecutor becomes a
compulsion to have a defence, otherwise the fair and equal arms procedure can’t
be reached either according to the Court’s message or my viewpoint. The
Hungarian regulations don’t put it down and don’t make it obligatory for the
acting court to join the defence lawyer the proceedings. He has the opportunity
to join but there is no obligation.
The accused can also ask for one but there’s no obligation. As far as I’m
concerned, I suggest the de lege ferenda obligation of the defence lawyer’s
participation parallel to the prosecutor’s participation
Approaching the
equality of arms from another side is thought-provoking, namely if the
prosecutor isn’t present (e.g. in an offensive procedure or on the second
instance) while there’s a defence lawyer, whether the equality of arms
enforces. The question can also be raised if there’s only a one-sided viewpoint
of the equality of arms or only the accused and defence lawyer’s views can be
found in the balance or the other party’s too.
In my point of view an accuser is a participant in the
fair procedure whose rights must be followed with attention and guaranteed by
the court.
However if the prosecutor
gives up his certain rights in a self-determinative way (as example the fight
for presence in this present case) cannot involve negative consequences
concerning the accused (the defence lawyer). Besides their situation is
improved by the institution of ‘favor defensionis’, this can be understood as
that. This way I. don’t. find the ‘backwards’ or the opposite direction
obligation acceptable to introduce them into the Hungarian regulations either. [10]
The Court made a decision
with similar content and reasons in the
judgement against K.D.B. THE NETHERLANDS (27.03.1998.) where the
infringement of the 1st point of section 6 was declared because the
petitioner wasn’t giver an opportunity to make remarks to the prosecutor’s
minute before the proceedings of the Nullity Chair.
The accused-defence order
with the documents was infringed in the REINHARDT AND SLIMANE-KAID FRANCE
case (31.03.1998.) since the petitioner and his legal representative in the
procedure before the Nullity Chair didn’t get those judicial documents before
the trial which were available for the prosecutor.
Well before the trial
of the Nullity Chair the public prosecutor got the draft of the judgement and
the report made by the official judge, in a completely unknown way in the
Hungarian practice, which were not sent over to the petitioners or to the legal
representatives. This report consists of two parts: the first one contains the
statement of the fact, the procedure and the nullity arguments, and second one
is the analysis of the case in a legal point of view, moreover it contains an
opinion about the merit of the nullity petition.
The Court remarked
that the petitioners’ defence counsels – inasmuch as its intention would have
been proved – could have acted properly in the case and after the official
judge, they had the floor, this way they have the opportunity to learn and
dispute the first part of this report. By all means the second part of the
report and the legally protected draft of the judgement and the secrecy of the
discussion still remained confidential; in the majority of the cases only the
direction of the acting judge’s opinion can be learned several days before the
proceedings.
On the other hand the
complete report and the draft of the judgement were sent to the public
prosecutor, but the public prosecutor is not a member of the judge- division.
His duty is to take care of using the laws properly if they are clear and in
case if they are equivocal to their accurate explanation. He gives the judge
some pieces of advice to the acceptable solution in every case and with his
authority he can influence their decision. As the report made by the acting
judge, the public prosecutor’s role and the result of the case concerning the
petitioners are very important, the Court judged unanimously, that the
unbalanced situation between the parties and the public prosecutor, isn’t
suitable for the requirements of the fair judicial procedure.
As I’ve referred the principal
of the equality of arms deduced from the fair procedure appears in the judicial
procedure, it is valid there as a whole, including the adversary system, but in
the case of DAUD PORTUGAL (12.04.1998.) the Court emphasised in its
judgement that the effective defensive requirement,(including the right for
presence, knowing the case, practising case advancing licenses, right for
complaint, etc.) exists not only in the judicial but already in the preparatory
(investigative) stage as well.
According to the Court, the
Agreement’s 1st point of section6 (right for fair procedure) was
infringed by – connected with the 3rd/c point – that the petitioner couldn’t get proper and
effective legal defence in the investigative and judicial part of the criminal
procedure having been involved.
The Court pointed out that
the aim of the agreement is not theoretical or illusory but to ensure practical
and effective rights, since assigning a counsel in itself doesn’t ensure the
efficiency of the legal support for the accused. The state cannot be
responsible for all the defaults committed by the assigned counsel. It derives
from the legal profession being independent from the state that the behaviour
of the defence concerns only the accused and his defence lawyer, should he be
whether a defence lawyer or an assigned counsel. The competent national
authorities have to interfere – on the basis of the 3rd/c point of
section 6 – only if they notice, or if they are informed of the fact, the
assigned counsel’s fault acting for a proper representation.
In this present case the
starting point is that concerning the assigned counsel’s skill and behaviour,
he was proved to be unsuitable for achieving the effect demanded by the 3rd
point of section 6. The Court remarked that the first assigned counsel didn’t
carry out any actions in the interest of the petitioner before he would have
announced his illness. This way the petitioner wasn’t able to provide his own
defence.
As far as the second
defence is concerned, whose assignment was made known for the petitioner only
three days before the criminal court, the Court thought he didn’t have enough
time to study the case, to visit the petitioner in the prison, and to get
prepared for the defence. The time between the announcement of assigning a new
counsel and the trial itself was too short for a serious and complicated case,
in which there was no investigation and a serious penalty was to be expected.
The Supreme Court didn’t redress the infringement as he refused the appeal
because of an unacceptable reason in his judgement.
The Court also stated
that it would have been the obligation of the mentioned authorities to act –
besides respecting the principal of independence of the Law Society – in a way
that the petitioner should get advantages deriving from his rights acknowledged
also by the authorities. In other words both the investigative authorities and
especially the acting courts should have examined and noticed the lack of
proper legal aid and the assigned counsel
‘s unfitness for the task and also it should have been their duty to assign
another counsel besides the official adjournment of the trial.
In the case of VAN GEYSEGHEM BELGIUM
(21.01.1999.) the Court stated the infringement of the 1st and 3rd/c
point of section 6 since the petitioner’s defence lawyer couldn’t practice his
rights in the absence of his client before the Court of Appeal.
The
Court emphasised in the reasons that every accused has the right for a defence
lawyer. This principle can be found in the right for fair procedure. The
accused can’t lose this right just because he doesn’t appear on the trials.
Even if it’s the obligation of the legislation to hinder unjustified absence,
he can’t impose sanctions with the infringement of the right connected to the
representation of the defence lawyer. The legal requirement for the presence of
the accused on the trials can be ensured with other devices.
In the case of VOISINE FRANCE (year 2000) the
Court stated the infringement of the right for knowing the case because the
public prosecutor’s suggestion wasn’t expounded with the petitioner in advance.
In the case of ROWE and DAVIS UNITED KINGDOM
(year 2000) also the right for fair procedure was infringed since the
prosecution referring to public interest – without the acting judge’s knowledge
and approval – important evidences weren’t made available for the defence. He
didn’t state the infringement of the law in the case of Jasper and Fitt,
because the evidences weren’t made available for the defence and the jury, but
the acting judge – considering the nature of the given pieces of information –
decided in the question of retaining the evidences and they made the most
possible accessible evidences without making the secret pieces of information
in the interest of the public open.
In the case of KRCMÁR and MÁSOK CZECH REPUBLIC
(year 2000) the right for fair procedure was infringed because the petitioners
weren’t ensured the possibility , in the trial before the constitutional court,
to learn written evidences having arisen and concerning the merits serving as a
basis in the case, and so that the petitioners could expound their remarks in
the respect of the content, the importance and the authenticity of the
evidences.
ad. III. (respecting private
life and private secret)
In
this group we can find decisions which state the infringement of other sections
(e.g. section13: right for complaint), including section 6 most often.
Primarily the infringement of the right for private –
and family life was stated in the case of DOMENICHINI ITALY (15.11.1996.),
as the correspondence of the person being in prison – including the
correspondence with his defence lawyer – was checked by the prison authorities.
At the same time the 3rd/c point of section
6 (owning the devices for preparing the defence) was infringed by opening and
reading the letter – written by the petitioner to his defence lawyer –
containing the reasons needed for handing in the nullity complaint. The defence
lawyer was given the letter only after the legal deadline, - which is ten-day
long at the Nullity Chair – this way he handed it in late.
Section 13 in the Agreement (right for effective legal
remedy) was also infringed by the fact that there was no possibility for legal
remedy against the law enforcer judge’s decision ordering the supervision. They
could only ask the change of the order in the discretionary petition from the
judge passing his judgement.
In the case of CALOGERO DIANA ITALY- similarly
to the above mentioned arguments – the Court founded guilty the Italian
government in his judgement (15.11.1996.) since the correspondence between the
accused completing his sentence and his defence lawyer was controlled by the
authorities.
In the judgement of KOPP SWITZERLAND
(25.03.1998.) the Court stated the infringement of section 6 because the phone
was tapped in the defence lawyer’s office.
In the case against PETRA ROMANIA (23.09.1998.)
the Court stated that the Agreement’s 2nd point of section 8 (right
for respecting private and family life) was infringed when the detainee’s
correspondence with the Committee of the Human Rights was controlled.
ad. IV. (right for freedom of
speech)
In
the case against SCHÖPFER SWITZERLAND (20,05,1998,), the judgement set
that the section of freedom of speech was infringed when a sanction was imposed
against the defence lawyer who expressed his critical cutting opinion
concerning the jurisdiction on a press conference.
The Swiss defence
lawyer held a press conference in his office where he stated that the laws and
human rights are seriously infringed in the field of the prefecture of Hochdorf
for years. He stated that one of his clients was taken into custody and kept in
prison without any kind of written decision. His statements were published in
several newspapers. The Supervisory Committee of the Law Society of Luzern
started legal proceedings against the petitioner in December 1992. In 15th
March,1993 he was fined for 500 CHF because of infringing the professional
rules of behaviour. The Law Society stated that the petitioner failed to inform
the Public Prosecutor’s Office and the Court of Appeal about his complaints
(which were serious), though these were the Supervisory Organisations o the
Prefecture. Consequently he didn’t give proof of discretion which should be
expectable from the defence lawyers during the actual cases. What’s more he
adopted hidden advertisement and poor sensationalism, so he infringed the
prestige of the Judicial authorities of Canton Luzern.
The Court emphasised the defence lawyers’ special
status created a central position for them in the jurisdiction, since they are
mediators between the citizens and the courts which explains the usual
restriction of the behaviour of the Law Society’s members. Regarding the
defence lawyers’ key roles on this field, they are to be expected to contribute
towards the effective work of the jurisdiction and also to the continuance of
the trust given to them.
It is obvious that the freedom of speech concerns the
defence lawyers as well, who can naturally make their remarks in public but
their judgement cannot exceed a certain level. In connection with this we must
regard the insurance of the right
balance between the concerning interests. This includes the citizens’ rights
for getting information of the question in connection with the requirements of
the proper work of the jurisdiction and of the dignity of the legal profession.
The Court stated that the petitioner made remarks in
connection with a criminal procedure which was current at that time before the
Court. The Court had regards to the general nature seriousness and tone of the
petitioner’s complaints besides the fact that the petitioner held a press
conference earlier stating that this was his last chance and he offered his
appeal to the Court of Appeal of Luzern
only after this, where he partly succeeded. He didn’t turn either to the other
organisation having supervision over district authorities or to the public
prosecutor’s.[11]
ad. V. (right for legal
remedy)
In
the above mentioned case of CALOGERO DIANA ITALY (15.11.1996.), the
Court stated in its judgement that the accused had no possibility for legal
remedy against the decision of the law enforcer judge ordering control, and the
alteration of the order could have been asked only from the judge passing the
judgement in the petition of fairness. The right for effective legal remedy
(section 13) was infringed by this.
In the case against PETRA ROMANIA (23.09.1998.)
– which has already been cited above – the Court also stated that section 25 in
the Agreement (right for personal complaint) was infringed, as the petitioner
was threatened which hinders the petitioner in his effective legal practice.
The
Human Rights’ Committee of UN as a court of human rights:
The ‘International Document of Agreement of Civil and
Political Rights’ also appearing as the source of the European Agreement
(announced by the 8th law decree in Hungary in1976.) and the
Optional Minutes (announced by the 25th law decree in Hungary in
1988.) attached to that along with the Agreement introduced basically the same
international human rights judging in the scope of this individuals can appeal
to the Human Rights’ Committee of UN, that makes a decision after examining the
complaint.
It is remarkable that Hungary was also concerned in one
of the decisions in connection partly with the examined topic.[12]
In the case against KOLUMIN HUNGARY the Human
Rights’ Committee of UN examined Vladimir Kolumin’s complaint (a person used to
be a Soviet, later a Russian citizen during the case), in which he objected to
the infringement of his right for personal freedom (section 9 of the
Agreement), right for fair treatment with detainees (section 10), right for
fair judicial procedure (section 14), and the right for prohibition of
disadvantageous distinction (section 26).
Concretely he felt injurious – among others – that
after his detention till the end of the investigation and his transportation to
the penal institution it was not possible for him to meet either his defence
lawyer or the Soviet consul, to write letters to his friends and relatives, and
to get his Hungarian grammar book and dictionary from his luggage to learn the
language.
The defence of the Government was that Kolumin, during
his detention in the police cells, filled and handed in seventeen so called
application sheets to the authorities. Among these there is no request for a
grammar book and a dictionary (there were no such books in his luggage
according to the inventory made by the police).
Furthermore the defence pointed out that they assigned
a counsel for Kolumin in 20.08.1988. with whom he asked for an appointment in
his requests. These requests were sent to the defence lawyer and both of his
written requests were also sent to the Soviet consul in which he urged their
meetings.
Kolumin also stated that the procedure against him
didn’t meet the requirements of section 14 in the Document of Agreement in more
respects. According to his statement he wasn’t given enough time to study the
documents of the investigation and to consult his defence lawyer after the end
of the investigation; his defence lawyer was unprepared and unfitted for the
task.
The Hungarian Government proved in contrast to this
that Kolumin could study the 600-paged document of the investigation with the
help of his interpreter for six whole days and this can’t be considered short
time. Besides he should have asked -
might as well through his defence lawyer – for the extension of the time for
studying the documents, but there is no
trace of it as there is no trace of raising these complaints during the
procedure either. He met his defence lawyer five times before the trial; there
is no trace of his (defence lawyer’s) unfitness, he didn’t expressed this
opinion either during the investigation or the trial, this way neither the
Public Prosecutor’s Office nor the Court didn’t have the possibility to learn
about his complaint, to consider whether it was needed to arrange for assigning
an other counsel.
The Human Rights’ Committee as a court passed its
judgement in 26.03.1996. in which – basically accepting the arguments of the Government
– it stated that Kolumin’s rights according to sections 10 and 14 in the
Document of Agreement (the right for preparing for the defence and the right
for defence) weren’t infringed.
[1] More details:
László Kecskés: EC law and legal harmonisation. KJK. Bp. 1997.; Jenő
Czuczai – LajosFiczere (eds.): Europe from A to Z. Handbook of the European
Integration. Bp. 1997.; Zoltán Lomnici (ed.): European Institutions and legal
harmonisation. HVG-Orac, Bp. 1998.; László Kecskés – Zoltán Lomnici – Mihály
Maczonkai: The Court Of the European Community HVG-Orac, Bp. 2001.
[2] The Hungarian
effects of case law, my – occassionally de lege ferenda – opinions concerning
the modification of the internal law will be detailed in my monograph about
‘The defence lawyer. About the role and legal status of the defence lawyer in
the criminal procedure.’ (Publisher Dialóg Campus, Budapest-Pécs, 2002. p.
493.) In my present study – without intending to be exhaustive – I am
demonstrating only the main decisions and consequences drawn from those.
[3] The cases appeared not only in original sources but in the supplements of Judicial Decisions such as in the followings: The Legal Practice of the European Court of Human Rights by Vincent Berger (HVG-Orac, Bp. 1999.), Handbook about the judgement of Human Rights of Strasbourg (HVG-Orac, Bp. 1998.).
[4]
The Parliamentary Commissioner’s Report of the Civil Rights also refers to this
about the investigation nr 6564/1996: the prevail of the right for defence of
the detainees, having an assigned counsel, in the investigative period of the
criminal procedure, 1996. Csongor Herke: Theoretical and practical questions of
detention. Ph. D thesis. Manuscript, Pécs, 2001. p.418
[5]
In my opinion introducing the concept and institution of the defence lawyer,
belongs to the circle of efficiency. As only a professional and qualified
person, who is specialised in this task, can be effective and successful,
opposed to a prosecutor who is an expert in law. The only and most suitable
circle for this task is the lawyer’s. The law (XIX/1998), current from 2003,
which is about the new criminal procedure, rightly lets only the defence lawyer
into a defensive position. The phrase ‘defence lawyer’ is proper doubly. Partly
it refers to the fact that the person is a professional lawyer, partly it
differentiate the lawyer being in a defensive position from other lawyers in
the criminal procedure. Since the lawyer can be the offended one, his other
legal representative concerned, the one who is making the documents in the
reconsolidation, then the lawyer of the witness in the new criminal procedural
law (as a 1quasi solicitor’)
[6]
Miklós Kengyel also indicates well in the native literature examining the
organisational principals of procedural law that their majority have already
been drafted in the international norms, which are already human rights-like
while the principals of operation are natural right-like. Miklós Kengyel:
Hungarian Civil Procedure I-II-III. Pécs, 1991-92-93. Volume I. p. 19
[7]
The ‘legal gladiators’, the opponents can carry out the litigation in their own
method and wish according to the judicial rules and practice before the
passive, non-committal and inactive Court who has to keep off ‘getting into an
arena’. Miklós Kengyel: The civil procedure at the turn of the millennium.
Hungarian Law 2000/12. p.713
[8]
I initiated that the change of the Hungarian regulations to be paid for at the
Constitutional Court of the Hungarian Republic in 1998. Decision hasn’t been
made yet. See my viewpoint more detailed about this: Csaba Fenyvesi: Does the
constitutional principal of the defence suffer damage by authorising copying
documents? Belügyi Szemle, 3/1999. p. 45-52
[9]
The disadvantaged accused can’t be hindered by unfairness, and making him much
disadvantaged by this. Flórián Tremmel shows the accused one’s situation using
a proper remark: Magyar Büntetőeljárás. Dialóg-Campus, Pécs,2001. p. 154
[10]
Not even despite the fact that one of the French lawyers’ delegation, visiting
Hungary in 2000, was shocked and astonished realising the lack of prosecutor’s
presence on the Hungarian judicial procedure which is unacceptable for them on
both the theoretical and practical stages in the jurisdiction of their country.
[11]
The reason for detailing the judgement was
that it could be a guiding for he Hungarian legal practice and
regulation too, which is still considered to be rather deficient and unsettled.
The limit of the defence lawyer’s opinion
appears in the scope of the defence lawyer’s regulations. It’s a
well-perceptible demand for the Court that no statement is permitted in the
current criminal procedure. Rejecting this, or the false fact-statements
against the jurisdiction, must involve disciplinary sanctions (based on
high-level ethical requirements) in certain national Law Societi(es).