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European Court follows Fair Trials in Zachar & Čierny v Slovakia

editor - July 30, 2015

ARCHITECTURE STOCKFair Trials intervened on the case of Zachar & Čierny v Slovakia in the European Court of Human Rights. Here Grace O'Reilly, one of Fair Trials' Legal and Policy interns,  explains the intervention and considers the implications of the ECtHR's decision.

The European Court of Human Rights (the Court) has handed down its judgment in the case of Zachar & Čierny v Slovakia. The judgment places emphasis on notification of accusation and rights to suspects upon arrest in line with the new standards set by the Roadmap Directives.

Fair Trials made a third party intervention in this case, drawing the Court’s attention to information supplied by the Legal Experts Advisory Panel (LEAP), the EU-wide network of over 140 criminal law practitioners, academics and NGOs coordinated by Fair Trials, highlighting the common problem of purported ‘waivers’ of the right to a lawyer based on deficient information about the consequences of doing so.

The facts

The applicants were arrested on suspicion of drug trafficking, an ordinary criminal offence which did not require mandatory legal assistance. In the absence of a lawyer, both applicants made incriminatory statements. The forms used for the statements detailed the right to a lawyer and the right to silence and contained basic check boxes indicating those rights had been waived. No further instruction was given.

Later, the applicants were informed that they were being charged with an ‘aggravated’ form of the original offence which did require mandatory legal assistance. The applicants were found guilty based on their pre-trial statements. On appeal, they argued that they had not been informed of their procedural rights and that due to the seriousness of the offence, they should have had access to legal assistance.  Moreover, they asserted that the inadequate provision of information essentially negated their defence rights entirely. Having had their appeal refused by the Supreme Court and Constitutional Court of Slovakia, they applied to the ECtHR arguing a violation of Article 6 of the European Convention on Human Rights (ECHR).

Our intervention

Fair Trials stated in its intervention that it was the duty of the Court to determine whether the right to remain silent and the right to legal assistance had been waived effectively, and, if not, whether  the domestic courts had taken adequate action to ensure the fairness of proceedings.

Though not applicable at the time of the initial trial, Fair Trials highlighted that the Right to Information Directive (2012/13/EU) explicitly states that a suspect must be promptly informed of both their procedural rights and the accusations against them.  Should there be any change to their accusations, the Right to Information Directive emphasises that the suspect must be informed in a timely manner. We also reiterated that Article 9 of the Access to a Lawyer Directive (2013/48/EU)  requires that where a suspect waives their right to a lawyer, they must have been ‘provided, orally or in writing, with clear and sufficient information in simple and understandable language about the content of the right concerned and the possible consequences of waiving it.’

The decision

Acknowledging its agreement with the arguments raised in Fair Trials’ intervention, the Court asserted the fundamental nature of the right of access to a lawyer, particularly in the early stages of a criminal investigation.

It noted that a suspect may freely waive the right to legal assistance, but that where this occurs, the Court must ensure that the circumstance in which this right was waived is compatible with ECHR obligations.

In this case, the applicants waived their rights when they were presented with the aforementioned pre-printed forms. They were given no further explanation as to the consequences of doing so, nor were they informed that there was a distinct possibility that their offence would later be reclassified to a more serious offence with a heavier penalty. The Court therefore found that their waiver was not effective.

It went on to decide that the infringement of Article 6(3)(c) ECHR was not remedied by later aspects of the procedure, due to the fact that the confessions initially made by the applicants without any legal assistance significantly impacted upon the course and outcome of the trial.

The Court also observed that the reliance of the domestic courts on the pre-trial statements was remarkable due to the fact that those statements related to the initial ordinary criminal offence and not the aggravated criminal offence for which they were indicted and ultimately convicted.

Following the adoption of the Roadmap Directives, Fair Trials has encouraged the Court to be informed by these measures when considering alleged violations of Article 6 in criminal law cases. We are therefore delighted that the Court formally acknowledged the relevance of both the Right to Information Directive and the Access to a Lawyer Directive in its judgment. While it did not explicitly rely on either directive, its careful assessment of the conditions in which the applicants waived their rights shows a clear sensitivity to the issues which the EU directives seek to address.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on 020 7822 2370 or 07950 849 851. For regular updates follow Fair Trials on Twitter or sign up to our monthly bulletin at the bottom of the page.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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