Defending theHuman Rightto a Fair Trial
Across Europe, basic rights are being violated every day in police stations, court rooms and prisons. This is destroying the lives of innocent people, causing miscarriages of justice and undermining public faith in criminal justice systems.
At Fair Trials we believe Europe should work together to improve respect for basic fair trial rights. We have led the calls for action by the European Union to improve standards of justice and our work is starting to pay-off. New laws have been passed guaranteeing some basic defence rights but much more remains to be done.
Until we have justice in Europe, human rights abuses will undermine the willingness of European countries to work together to fight crime. There are four arms to our Justice in Europe campaign:
1. Make existing laws work in practice; 2. Follow up on promised new laws; 3. Tackle excessive and unjustified pre-trial detention; and 4. Safeguards against injustice in judicial cooperation.
This map gives an overview of the status of Justice in Europe. You can click on any of the EU's 28 member countries and six EU candidate and potential candidate countries in the Western Balkans for:
- Information on its record over the last five years in the European Court of Human Rights on fair trial rights and pre-trial detention;
- Cases of Fair Trials International clients (where relevant);
- Criticisms by international organisations, the local press and domestic NGOs; and
- Practical guidance on criminal procedure and local sources of support (for some countries).
If you have any comments on the information contained here, or think we should include anything else, please email us at: [email protected]
This work has been made possible through generous support from the European Commission.
Between July 2015 and March 2016 the United Kingdom was held in violation of Article 5 ECHR in 0 decided cases and in violation of Article 6 in 1 decided cases
We have highlighted a number of cases of unjust extradition from the UK under the European Arrest Warrant (see for example: Andrew Symeou, Garry Mann, Deborah Dark and Edmond Arapi).
If you have been arrested in England or Wales you can find useful information in our Need Help section. We also have a separate page for the legal system in Scotland in our Need Help section.
Many individuals find themselves before the court with no prospect of receiving legal aid. They can find themselves convicted of offences which they did not commit, because they did not have proper legal representation. Without proper legal aid and access to lawyers, the right to a fair trial is being impacted upon.
The process in relation to disclosure is one of the most common barriers to a fair trial. Prosecution lawyers regularly refuse to disclose material which could have assisted the defence. As a result, defence lawyers can miss key pieces of evidence which could have turned the case in their client's favour.
Occasionally some officers resort to brutality or coercion, particularly at large gatherings of people during protest marches.
I am disturbed by the fact that we donÃ¢ÂÂt provide translations during investigations. This puts the defendant at a disadvantage and provides no equality of arms.
Non-nationals are kept in custody to prevent them from returning home. I believe these form a large portion of our Ã¢ÂÂinmatesÃ¢ÂÂ in pre-trial custody. It often stands out as disproportionate to the crime that they are accused of.
Some suspects spend a very long time in custody. Sweden has no real limit for pre-trial detention. This is a heavy burden, especially if the subject is isolated, which is very common.
Lawyers have no access to the police trial, no private interview prior to questioning, and no possibility of active intervention during the interrogation. Without access to the file we are unable to give correct legal advice.
I have NEVER seen a judicial document translated and handed to a subject.
The main barriers to a fair trial are the absence of a real presumption of innocence and the breach of procedural safeguards.
Public opinion and media coverage can sometimes pressure the court to make a particular decision where a case is very notorious.
It is possible to go for quite a long period without a lawyer if you do not have any money.
Police officers, prosecutors and courts often ignore the main principles of criminal procedure and the suspect's rights. Their decisions are often unfounded and without any logical basis.
There are problems with detention conditions - bad hygiene, bad food and drink, bad relationships between the people held in custody.
Often it is not possible to anticipate judicial decisions. Courts often ignore case law and evidence.
Often suspects claim that they have been brutalised mentally or physically. Police custody is overcrowded, the conditions are poor and in some cases suspects are sent to state prison during police custody.
The major problem I believe to be the ignorance about fundamental rights on the part of police officers.
Sometimes police officers threaten or beat people, but this is becoming less common. More common is pressure for the suspect to make an "off the record" confession and not to exercise their right to access a lawyer.
Some detention facilities have very poor hygiene conditions, with regard to toiletries in particular.
In practice, the court often only appoints the state-appointed lawyer a few days or weeks after the charges. Therefore the defendant is without a lawyer during the first interview(s).
During police custody neither the suspect nor the lawyer has access to the case files. Theoretically the prosecutor is the authority that decides whether access is granted.
Suspects are left for over 20 hours with no food or drink. Cell conditions are terrible. Lawyers have no right to inspect the detention conditions.
Poland is recognised as a country in which decisions on pre-trial detention are issued too easily, for quite long periods of time.
The preparatory proceedings are definitely too long. Temporary arrest is abused; it is used too often and for too long, and often replaces the actual penalty.
Sometimes suspects are told that they have to spend the night in jail if they want to consult a lawyer which means they are pushed not to exercise their right to consultation.
The suspect has no access to the case file before the hearing. You can discuss the file with your client but not in private. There is a police security presence in the room so that you cannot speak freely.
The principle of "Justice delayed is justice denied" represents the most serious breach of the right to a fair trial in Malta.
Defence lawyers are granted 1 hour to consult with their client before the interrogation by the police. This is done without knowing what the investigation is about and without knowing what evidence is held by the police. Advice has to be given in a vacuum!
Too many suspects are being convinced by the police that they do not need a lawyer at the custody stage, that it would only cost time and money, and that the lawyer cannot assist during the process anyway.
The presumption of innocence is not sufficiently applied. Suspects are being detained too easily and remain in custody too long.
In some cases the prosecution reaches agreements with suspects that, for example, the suspect will give evidence against his accomplices and will receive a better sentence. Such agreements are not legal and difficult to prove.
A suspect rarely understands his right not to incriminate himself and normally it is not explained to him.
Quite often police orally encourage suspects NOT to use the assistance of a lawyer. They offer certain deals as well as threaten suspects in this respect.
In theory, the lawfulness of police custody can be reviewed on request of the defence, but this complaint procedure is not effective since the maximum time for police custody is 48h, but the complaint must be answered within 3 days.
A suspect is not entitled to access the case file until termination of the pre-trial stage. The issue has become even more complicated due to amendments which provide that a suspect is not even entitled to access the materials which form the basis of his detention.
Inhumane treatment occurs very often in order to obtain a confession. The lawyer can only see the suspect with the authorisation of the public prosecutor, and this is rarely granted.
Police officers cannot question suspects without a lawyer present, but in practice they do so in order to obtain a self incriminating statement.
Overcrowding is a real issue.
During the trial many judges intervene to prevent defence lawyers from cross examining the prosecution witness. The trial is often a charade.
A suspect's right to remain silent is compromised by the fact that inferences can be drawn from the suspect refusing to answer questions. This is made more difficult by the fact that lawyers are not allowed to be present during interrogation.
There is not a sufficient legal obligation on the police to provide information about the charges to the suspect or his lawyer. This lacuna can be exploited, and is, by some policemen.
Emergency lawyer access does not always result in an effective defence. The actual presence of the lawyer is not required during police custody and interrogations can be held at times as unreasonable as 3am. Sometimes the lawyer is notified by phone 15 minutes before the interrogation.
Police quite often interview a suspect without a lawyer, convincing him that he does not need one if he is innocent.
A minor killed himself in police custody with his own shoe lace.
In general I would say that the efficiency of the prosecution, which is above 90%, shows that the equality of arms is not respected enough.
Sometimes the police fabricate answers during questioning or change the content of the confession. As there is no audio recording, lawyers have no way of proving that this goes on.
There are problems with police brutality. The subject is often forced to confess to a crime that he has never committed.
There are times that police custody conditions are inhuman. The cells are tiny, they don't have space to move and there are no medical facilities.
Sometimes suspects are hit or put under pressure ("You will be in jail for a long time if you don't speak with us").
Pre-trial custody is abused; detainees are encouraged to declare their own guilt.
Inhumane treatment can occur in police custody before a lawyer is present.
Conditions in pre-trial detention are very bad. There are problems with hygiene, cell space, fresh air, toilets, and food.
Lawyers are badly paid under the legal aid system, which means that most poor people have a very poor defence.
The suspect may be unable to contact a lawyer, and he may be wrongly informed by the police that the lawyer is unavailable. The police tend to be irritated by the presence of a lawyer during interrogation.
It is not unknown for police to use pressure during detention in order to obtain a confession from the suspect.
When the plaintiff is the state, the starting point for the suspect seems to be more like a presumption of guilt than of innocence.
The lack of quality control system for interpreters means that there are effectively no guarantees as to the quality of their work.
Detention facilities are often old (dating back to the Soviet era) and in poor condition. Sometimes they are overcrowded.
Some materials are held to be sensitive on the grounds of national security and are not shown to the defence.
Generally speaking, the courts and judges feel that their most important task is to protect the state, and not to ensure that justice is done.
The police have to present charges as a precondition of arrest, but these charges can be changed and extended during police interrogations.
The major barrier to a fair trial is the slow operation of the courts, which are unable to resolve cases within a reasonable time. This is also the most common reason for complaints to the Czech constitutional court and the European Court of Human Rights.
The reality is that review of continued detention is a simple formality in many cases. Reasons are not given for continued detention and previous decisions are simply repeated.
Sometimes the arrest of a suspect will be delayed in order to take an incriminating statement first. The subject will then be arrested and given his rights.
Police sometimes exhibit brutal behaviour and cause psychological stress to suspects.
As regards the right to access a lawyer, police officers often pressure the suspect to either waive his right in writing, or to 'choose' the assistance of the duty lawyer provided by the police.
Access to a lawyer is usually not provided during the first 24 hours of arrest, and is only available once charges have been brought. By that point the suspect will have made written statements which may form part of the legal grounds for his accusation.
My clients often complain of physical or psychological police brutality during the process of questioning.
The doctors examining suspects come from the Ministry of Internal Affairs. We have heard complaints by clients that after being beaten, they were examined by a doctor who then found no traces of brutality.
The main problem is the impunity of the judges for their mistakes. There are many judges who have had little or no experience of judicial practice before their assignment.
The Belgian State has failed to organize any system of remuneration for legal assistance since the Salduz case. As a result, many lawyers have refused to participate in the legal aid system for assistance during police custody.
Sometimes the interpreter is a police officer who has taken an oath. I don't consider a police officer to be fully independent.
Sometimes interpreters lack independence from the police. Interpretations can be incomplete or inaccurate.
During police custody, not even the lawyer has full access to the case file. To get a copy of the file a fee must be paid.
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Fair Trials Europe is a registered public foundation in Belgium (No. 552688677).
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This publication has been produced with the financial support
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