Viktor Bérces: Evidence in Criminal Proceedings
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Chapter IV. Principles of evidence
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4.8. The principle of “due process” and its sub-principles

4.8. The principle of “due process” and its sub-principles

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The general content of this principle is that public authorities must decide on individual cases concerning citizens’ rights in a fair and equitable manner.1 The essential elements of the guarantee of Anglo-Saxon origin were first set out in Article 6 of the Convention, which was promulgated in Hungary by Act XXXI of 1993 and as a result of which certain of its legal provisions appeared in Hungarian constitutional legislation.2 However, the Constitutional Court still does not refer to the concept of “fair trial”, despite the fact that numerous petitions are nowadays submitted to the Court of Justice by Member States alleging violation of this principle. However, Strasbourg case law considers the concept of “due process” as a subsidiary clause. This means that if there is any other violation of a fundamental (procedural) right under the Convention, it is no longer necessary to find that this fundamental right has been infringed.3

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The following case law decisions on the Convention have shown an important direction in the interpretation of the principle of “fairness”:

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  1. The fairness or unfairness of a procedure can usually only be judged on the basis of the procedure as a whole:
    • this does not mean, however, that a particular factor cannot be so decisive for the case as a whole as to give rise to a breach of the Convention in itself; 4
    • it may be the case that only a cumulative assessment of all the circumstances can establish the “unfairness” of the procedure.5
  2. The Court of Justice never examines possible defects in the national legal system or infringements committed by the law enforcers, but whether the authorities of the Member State concerned have infringed the provisions of the Convention.6
  3. The admissibility of evidence must be governed by national (Member State) law and it is for the national authorities alone to consider the evidence submitted to them; the Court’s task, by its own definition, is therefore only to determine whether the proceedings as a whole are fair or unfair.7 The Court’s jurisdiction, by its own definition, does not extend to examining either the defects in the national legal systems or the infringements committed by the Member States’ law enforcement authorities,8 but only to examining whether all these factors taken together are capable of establishing a violation of the Convention.9
  4. The burden of proving the alleged unfairness of the procedures lies essentially with the applicant.10
    The Court found an understanding of the Convention when
    • in the pending case, written evidence was not communicated to the applicant;11
    • the 24-day detention was carried out without an official decision, no criminal proceedings were initiated before the detention and the suspected offender was not reported;12
    • the applicant had only a short time limit to appeal against the judgment, whereas the prosecutor was not bound by any time limit in this respect; the Forum also criticised in the same case the fact that the prosecution, contrary to the defence, had been informed in advance of the composition of the court; 13
    • the lawyer present could not represent the accused because his unlawful absence was sanctioned by national law;14
    • the court deprived the accused of the opportunity to be represented by a lawyer because he stayed away from the trial out of fear that he would be arrested;15
    • the accused was deprived of the possibility of lodging an appeal on the grounds that he had previously withdrawn from detention.16
 

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However, the Court held that there was no breach of the Convention when

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  • the prosecution had a longer time to appeal than the defence;17
  • the applicant was acquitted by the courts, but the Supreme Court ordered a retrial, which resulted in the applicant being retried.18

4.8.1. The principle of “equality of arms”

1 Erika Róth: Az eljárási jogok. [Procedural rights.] In: Gábor Halmai – Gábor Attila Tóth (ed.): Emberi jogok. [Human Rights.] Budapest, Osiris, 2003. 703.
2 See Article 57 of the Constitution, then Article XXVIII of the Fundamental Law.
3 Pakelli v. Germany judgment of 25 April 1983, Series A no. 64. In: Grád–Weller (2011) ibid. 357.
4 Miailhe v. France (No. 2) judgment of 26 September 19996, Reports 1996-IV, p. 1338. In: Grád–Weller ibid. 358.
5 In one case, the terror suspects were only transported to the court the night before the crucial trial, and the members of the court panel were changed on the day of the trial, with the new panel barely dealing with the bulk of the evidence during the proceedings. Barbera, Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146. A similar situation arose in the case where the defendants’ trial was not public and they were not allowed to question witnesses in an appropriate manner. Gencer and Others v. Turkey judgment of 21 December 2006, no. 6291/02. In: Grád–Weller (2011) ibid. 358.
6 cf. Perez v. France judgment of 12 February 2004, no. 47287/99. In: Grád–Weller ibid. 358.
7 In the case of Ferrantelli and Santangelo v. Italy (1996), the Court of Justice did not find any evidence to that effect. In Grád–Weller ibid. 359.
8 Perez v. France judgment of 12 February 2004, no. 47287/99. In: Grád–Weller ibid. 358.
9 The Court of Justice did not find a breach of the Convention where the national court presumed, in an ambiguous situation, that the prosecutor had lodged his appeal within the time limit. This is essentially a matter for the national courts to decide. Tejedor Garcia judgment of 16 December 1997, Reports 1997-VIII, p. 2782. In: Grád–Weller ibid. 361.
10 Göktan v. France judgment of 2 July 2002, no. 33402/96. In: Grád–Weller ibid. 359.
11 “Koupila v. Finland”, ECHR 2001/2, in Czine–Szabó–Villányi–Baka ibid. 248.
12 “Bitieva vs. Russia” case, 21 June 2007. In Czine–Szabó–Villányi–Baka ibid. 255.
13 Kremzow v. Austria judgment of 21 September 1993, Series A. no. 268-B. In: Grád–Weller ibid. 360.
14 Van Geyseghem v. Belgium judgment of 21 January 1999, no. 26103/95. In: Grád-Weller ibid. 365.
15 Eliazer v. the Netherlands judgment of 16 October 2001, no. 38055/97. In: Grád–Weller ibid. 365.
16 Khalfaoui v. France judgment of 14 December 1999, no. 34791/97, and Papon v. France judgment of 25 July 2002, no. 54210/00. In: Grád–Weller ibid. 365.
17 This will only result in a breach of the Convention if an analysis of the procedure as a whole leads to the conclusion that it was unfair. Ben Naceur v. France judgment of 3 October 2006, no. 63879/00. In: Grád–Weller (2011) ibid. 361.
18 Nikitin v. Russia judgment of 20 July 2004, no. 50178/99. In: Grád–Weller ibid. 359.
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