Chapter 8
The right to defense by counsel is a fundamental guarantee of a fair trial. It enables the accused to defend themselves effectively by utilizing the legal expertise of a lawyer.
Legal Basis
This right is guaranteed by several key international instruments:
* Article 6, §3(c) of the European Convention on Human Rights (ECHR): Guarantees the accused the right to defend himself in person or through legal assistance of his own choosing. If he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
* Article 14, §3(d) of the International Covenant on Civil and Political Rights (ICCPR): Affirms the right of the accused to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing. He is to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.
* Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (CFR): These articles guarantee the right to an effective remedy and a fair trial, as well as the presumption of innocence and right of defense, including the right of access to a lawyer.
Substantive Legal Dimension
The right to defense by counsel is not merely a formal possibility. It is a substantive legal obligation of the state and includes several aspects:
* Right of Choice: The accused has the right to choose their own lawyer.
* Right to State Legal Aid: The state is obliged to provide a lawyer free of charge when the individual lacks the means to pay.
* Right to Competent and Effective Counsel: According to the case law of the European Court of Human Rights (ECtHR), even if a lawyer is provided, if they remain passive or incompetent, this may be considered a violation of the right to defense.
* Right to Free Communication: The accused must have the opportunity for confidential communication with their lawyer.
Link to the Right to a Fair Trial
These rights are inextricably linked to the right to a fair trial. A violation of the right to defense by counsel renders the entire process unfair and illegitimate.
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A court-appointed lawyer is a key guarantee of fairness in the criminal process when an accused person or defendant lacks the means to hire a defense attorney. This provision ensures the equality of arms and the effective right to a defense.
Legal Basis and Essence
The right to a court-appointed lawyer is established in:
* Article 6, §3(c) of the European Convention on Human Rights (ECHR): Obligates the state to provide a court-appointed lawyer "when the interests of justice so require."
* Article 14, §3(d) of the International Covenant on Civil and Political Rights (ICCPR): Affirms the right to a lawyer free of charge when the interests of justice so require.
The interests of justice generally require such an appointment in cases of serious crimes, when the accused is a minor, or when a defense would be impossible without a lawyer.
Obligations of the State
The state is obliged to provide not just a formal presence of a lawyer, but effective legal assistance. This includes:
* Appointing a competent lawyer capable of defending the client's interests.
* Ensuring confidential communication between the accused and the lawyer.
* Providing adequate conditions for the lawyer to work on the case.
The violation of these obligations can lead to judgments against the state by the European Court of Human Rights (ECtHR).
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The right to examine witnesses and the prohibition of using "hearsay" evidence are fundamental guarantees of a fair trial. They ensure the equality of arms and allow the accused to defend themselves effectively.
Legal Basis and Essence of the Right
* Article 6, §3(d) of the ECHR: Guarantees the accused the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
* Article 14, §3(e) of the ICCPR: Affirms the right of the accused to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
* Articles 47 and 48 of the CFR: These articles guarantee the right to a fair trial and the right of defense, which includes the possibility of challenging the evidence presented by the prosecution.
Prohibition of "Hearsay" Evidence
This prohibition stems from the principle of direct evidence and is essential for fairness. Hearsay evidence consists of testimony by a person who recounts what they heard from another person, rather than what they personally saw or heard. Such testimony cannot be used as the sole or decisive evidence because the accused is deprived of the opportunity to cross-examine the person who made the original statement.
* Case of Al-Khawaja and Tahery v. the United Kingdom: In this landmark ruling (extending the principles of Delta v. France), the ECtHR explicitly emphasizes that a conviction cannot be based solely or to a decisive extent on hearsay evidence, as this violates the defendant's right of defense.
Interconnection with Other Rights
The right to examine witnesses is closely linked to:
* The Right to a Fair Trial (Article 6, §1 of the ECHR): It ensures the equality of arms and the opportunity to challenge the prosecution.
* The Presumption of Innocence: To be found guilty, the defendant's guilt must be proven through direct and verifiable evidence.
* The Right of Defense: The examination of witnesses is a core element of the defense strategy.
Violation of these principles leads to the illegitimacy of the entire process and may serve as grounds for overturning a conviction.
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The analysis concerning the essence of the concept of a "witness" and the consequences of its perversion is exceptionally accurate and addresses one of the most serious issues in criminal justice.
Who Can Be a Witness?
According to the principles of the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR), a witness can only be a person who has personally perceived a fact relevant to the act. This means that witness testimony must be based on direct impressions—what the witness saw, heard, or felt.
* Article 6, §3(d) of the ECHR and Article 14, §3(e) of the ICCPR guarantee the accused the right to examine witnesses against them. This right is meaningless if the testimony is based on rumors, assumptions, or suggestions.
* Articles 47 and 48 of the EU Charter also affirm the principle that evidence must be collected and presented in a manner that allows the accused to defend themselves effectively.
Abuse of Law and Its Consequences
When authorities deliberately involve individuals who are not direct eyewitnesses to the act for the purpose of "inflating" the case and creating artificial evidence, they commit an abuse of law (abus de droit).
This approach has several serious consequences:
* Violation of the Right to a Fair Trial: The process loses its objectivity and adversarial nature. Instead of seeking the truth, the goal becomes achieving a conviction at any cost.
* Violation of the Right of Defense: The defense is confronted with testimony that cannot be effectively challenged because it is based on hearsay. This makes a meaningful cross-examination of witnesses impossible.
* Illegal Process: Involving individuals who are not true witnesses renders the entire process illegal and illegitimate. The case becomes based on legal aberrations rather than facts.
In conclusion, the correct interpretation of the concept of a "witness" is of critical importance to the rule of law. Any deviation from this principle represents an attack on justice.
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Legal Opinion on the Inadmissibility of Evidence Obtained Through Torture and the Consequences for the Fairness of the Judicial Process
1. The Absolute Prohibition of Torture
The prohibition of torture is a peremptory norm of international law (jus cogens), from which no derogation is permitted. This is established in:
* International Covenant on Civil and Political Rights (ICCPR), Art. 7:
"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."
* European Convention on Human Rights (ECHR), Art. 3:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
* UN Convention against Torture (CAT), Art. 2 and Art. 15:
States are obliged to prevent any act of torture. Evidence obtained through torture is inadmissible in judicial proceedings.
* International Practice and Decisions of the Committee against Torture:
The Committee does not recognize evidence obtained through violence as valid. Resolutions CAT/C/GC/2 emphasize that any confession obtained through violence is null and void.
Examples from ECtHR Case Law:
* Ireland v. United Kingdom (1978): The "five techniques" of physical and psychological influence were classified as inhuman and degrading treatment. The use of such techniques renders evidence inadmissible.
* Gäfgen v. Germany (2010): The threat of torture, even in an emergency situation, violates Art. 3 of the ECHR. Evidence obtained through violence compromises the fairness of the trial.
2. Violation of the Right to a Fair Trial
Articles of International Law:
* ECHR, Art. 6: The right to a fair trial, including the right to defense and equality of arms.
* ICCPR, Art. 14: Guarantees the right to a fair judicial process.
* CAT, Art. 15: Evidence obtained through torture is inadmissible.
Practice:
* Gäfgen v. Germany (2010): The Court ruled that a trial based on confessions obtained through the threat of torture is unfair.
* Kadić v. Croatia (2015): Confessions obtained through coercion render the process illegitimate.
Legal Conclusion: The use of forcibly obtained evidence violates fundamental principles of a fair trial, leading to the invalidity of the judicial decision.
3. Illegality and Illegitimacy of the Process
Any judicial proceeding based on evidence obtained through torture is unlawful. It violates the principles of the rule of law and trust in the judicial system. Officials who permit such evidence may be held criminally and disciplinarily liable.
Examples:
* Getsov v. Bulgaria: The use of witness testimony obtained through police violence is a violation of Art. 3 and Art. 6 of the ECHR, resulting in an unfair trial.
* El-Masri v. Macedonia (2012): Unlawful detention and torture render the process unfair and violate jus cogens norms.
4. Conclusion and Recommendations
* The use of evidence obtained through torture is absolutely inadmissible under international law.
* A trial based on such evidence is unfair, illegal, and illegitimate.
* It is necessary for:
* The court to reject such evidence;
* Procedural actions to be taken to protect the rights of the affected person;
* Officials who have violated the state's international obligations to be held accountable.
Legal Formulation:
"A process in which evidence obtained through torture is used violates the jus cogens norm prohibiting torture, the principles of a fair trial (Art. 6 ECHR, Art. 14 ICCPR), and the rule of law, and is therefore illegal, unfair, and illegitimate."
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Statement by Emil Dimitrov Milev: Inadmissibility of Testimony Obtained Through Torture and Violence
I declare with deep indignation and resolve that the use of evidence obtained through torture, violence, or psychological harassment is not merely a crime but a direct assault on the rule of law. Such actions represent a grave abuse of power and law, which destroys justice and renders the entire judicial process illegal.
Legal Basis and Case Law
The violation of this right is absolute and unconditional. It stands in direct conflict with fundamental international and European legal norms, as well as established case law.
1. Prohibition of Torture and Inhuman Treatment
* Article 3 of the ECHR: Absolutely prohibits torture and inhuman or degrading treatment.
* Article 4 of the CFR: Reiterates this absolute prohibition.
* Article 7 of the ICCPR: Guarantees that no one shall be subjected to torture.
* ECtHR Case Law: The Court in Strasbourg is adamant that evidence obtained through a violation of Article 3 is inadmissible in court. Even the slightest hint of inhumane treatment renders evidence invalid.
* Example: In the case of Getsov v. Bulgaria, the ECtHR found a violation of Article 3 and Article 6 after it was proven that a witness had been subjected to violence by the police.
2. Violation of the Right to a Fair Trial
* Article 6, §1 of the ECHR: Guarantees a fair trial.
* Article 14 of the ICCPR: Affirms the right of everyone to a fair trial.
* Article 47 of the CFR: Guarantees the right to an effective remedy and a fair trial.
* Case Law of the ECtHR and CJEU: The courts have ruled that a trial using evidence obtained through torture automatically becomes unfair, regardless of other procedural guarantees. The use of such evidence is in direct contradiction to the purpose of justice.
3. Abuse of Power and Law
* Article 17 of the ECHR and Article 54 of the CFR: These articles prohibit the abuse of rights and the use of powers for purposes other than those for which they were provided.
* The Violation: When state authorities use violence to obtain testimony, they abuse their power to secure a conviction rather than to discover the truth. This is a perversion of justice, transforming it into an instrument of repression.
Conclusion
The use of illegal evidence obtained through torture is a direct attack on the foundations of a state governed by the rule of law. It demonstrates that justice has been replaced by force, and the law by arbitrariness. Such actions are inadmissible in a democratic society and must be categorically rejected.
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