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Criminal procedure ECHR cases

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KARABOGA54
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Last updated: June 10, 2025
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First submittedJune 10, 2025
Times taken1
Average score53.8%
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Allan
Allan – Compulsion assessment depends on pressure, safeguards, and later use of evidence:
Not every form of police pressure is unlawful, there are a number of factors to determine this
Nature and degree of compulsion
Existence/availability of relevant procedural safeguards (e.g., presence of a lawyer)
Use to which any obtained material is put later in the procedure.
Buck
House searches must meet proportionality/subsidiarity test:
The Court assesses proportionality of house searches based on a set of clear criteria, as outlined in the Court’s assessment.
Toolkit for evaluating proportionality and subsidiarity:
Nature and severity of the offence
Availability of less intrusive means
Lack of Judicial Oversight
Eg. Judicial Warrant
Public and reputational impact
Beuze
High threshold to restrict lawyer access; two-step fairness test:
Threshold for justifying denial of lawyer access is high
Two-step test
Compelling reasons to restrict access
Temporary restriction
Individual assessment
Exceptional circumstances
Averting serious danger to life, freedom or physical integrity
Prejudiced the rights of the defence - does it fuck over the defence unfairly
Was fairness of trial preserved
Was this against a Vulnerable suspect / defendant?
Was there a proper legal framework governing the pre-trial proceedings
Applicant had the opportunity to challenge the authenticity of evidence
Does the quality of the evidence and circumstances in which it as obtained cast doubt on its reliability / accuracy
Was there a degree of compulsion
Was evidence obtained unlawfully
Was a statement made that was retracted / modified
To which use is the evidence put
Was assessment of guilt performed by professional judges, lay magistrates, jurors
What directions were provided to them
Public interest
Other relevant safeguards
Buzadji
Grounds for pre-trial detention must be concrete; detention must remain necessary and proportionate:
Pre-trial detention grounds for ECtHR:
Risk of absconding
Nationality and residence status
Nationality alone isn’t enough — actual flight risk must be demonstrated.
Criminal history and character
Assets and financial/employment situation
Prior compliance with judicial measures
Community & family ties (integration)
Availability of alternative measures
Access to travel documents or escape means
Expressed intent to flee
Obstruction of justice (e.g. tampering with evidence)
Risk of reoffending
Disruption of public order
Necessity and proportionality must be considered, with a preference for less intrusive alternatives
Eg. house arrest, bail
“After a certain lapse of time, the persistence of reasonable suspicion no longer suffices to justify pre-trial detention.”
Bjarki
Lawyer right applies during interrogation, even if not arrested:
Clarified that right to a lawyer (Article 6(3)(c) ECHR applies while being interrogated without having formally been arrested
Gafgen
Threats of torture = violation of Article 3:
Conditions of torture (what constitutes torture) and that threatening is also prohibited. Even threats of torture, not just actual torture, can already amount to improper compulsion and breach Article 3.
Ibrahim
Exceptions to lawyer right allowed if trial remains fair; waiver must be informed and voluntary:
Exceptions to a right to a lawyer (Article 6(3)(c) ECHR) are allowed, but any subsequent trial must still be fair
Exceptions to right to a lawyer are permissible, insofar as the subsequent trial remains fair
Clarified that any waiver of the right must be voluntary, informed, and unequivocal.
Passive receipt of a spontaneous confession does not breach Article 6 unless police deliberately manipulate the situation.
Hint
Answer
Prade
Prade – 4-step test for evidence admissibility balancing fairness and public interest:
4 step test to assess admissibility of evidence
Unlawfulness of evidence under national law
Did the defendant have an effective opportunity to challenge the evidence?
What is the quality, reliability and importance of the evidence?
Where evidence is strong and reliable, the need for supporting evidence is correspondingly weaker.
Consider whether it was a key piece of evidence or not.
What is the balance between public interest and the accused’s fair trial rights?
Schatschaschwili
3-step test for using absent/anonymised witnesses; fairness safeguards required:
3 step test to assess whether the use of absent or anonymous witness statements violates the right to confrontation (Article 6(3)(d) ECHR).
Good reason for non-attendance or anonymity?
Was the witness evidence the sole or decisive basis for conviction?
Were there sufficient counterbalancing safeguards to ensure fairness?
Zaichenko
Right to silence and lawyer applies once treated as a suspect:
Right to silence and legal counsel (Article 6(3(c)) ECHR) applies from the moment someone is treated as a suspect, not merely from the formal arrest or charge
Including situations where a person is substantially affected by criminal proceedings
Eg. Being questioned under suspicion
O hara
Reasonable suspicion
Natsvilishvili
Plea deals must be voluntary, informed, lawyer-assisted, and reviewed:
The Court set out requirements for plea agreements to meet Article 6 ECHR standards of fairness
Plea must be voluntary, unequivocal and based on informed consent
The accused must have had access to a lawyer and time to consult
There must be a public hearing and judicial review of the agreement’s fairness (and pressure) and the evidence supporting it.
The overall fairness of the trial must be preserved.
Salduz
Access to a lawyer is the general rule; key for fair trial:
Access to a lawyer is the general rule
The right to a lawyer is triggered from the first interrogation, unless there are compelling reasons not to
The waiver of the right to a lawyer must be voluntary, informed and unequivocal
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