Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement
compounded ... by the fact that the suspects were not allowed the advice of counsel
until they had made their statements to the police”, a situation that “left the defence
attorneys with no means to refute the evidence compiled and on record in the police
investigation report”.158
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With regard to article 6(3)(d) of the European Convention on Human Rights,
the European Court held in the Delta case that
“In principle, the evidence must be produced in the presence of the
accused at a public hearing with a view to adversarial argument. This does
not mean, however, that in order to be used as evidence statements of
witnesses should always be made at a public hearing in court: to use as
evidence such statements obtained at the pre-trial stage is not in itself
inconsistent with paragraphs 3 (d) and 1 of Article 6, provided the rights of
the defence have been respected. As a rule, these rights require that an
accused should be given an adequate and proper opportunity to challenge
and question a witness against him, either at the time the witness makes his
statement or at some later stage of the proceedings...”.159
Consequently, in the Delta case, where the applicant was convicted on the
basis of testimony given by witnesses at the police-investigation stage whose credibility
neither the applicant nor his legal counsel had been able to challenge, the European
Court found a violation of the right to a fair trial in article 6(1) and (3)(d) of the
Convention.160
The case of Unterpertinger
In the case of Unterpertinger, the applicant had been convicted of causing bodily harm
to his step-daughter and former wife in two separate incidents. Both victims refused
to give evidence in court although their statements were read out during the trial. The
European Court observed that, although the reading out of their statements was not
inconsistent with article 6(1) and (3)(d) of the Convention, “the use made of them as
evidence must nevertheless comply with the rights of the defence, which it is the
object and purpose of article 6 to protect”. This was especially so since the applicant
had “not had an opportunity at any stage in the earlier proceedings to question the
persons whose statements [were] read out at the hearing”.161 Since the applicant was
prevented from having his former wife and step-daughter examined, or from having
them examined on their statements in order to challenge their credibility, and given
that the Court of Appeal treated their statements “as proof of the truth of the
accusations made by the women”, the applicant did not have a fair trial and there was
a breach of both article 6(1) and 3(d) of the Convention.162
158 I-A Court HR, Castillo Petruzzi et al. case v. Peru, judgment of May 30, 1999, Series C, No. 52, p. 205, paras. 153 and 156.
159 Eur. Court HR, Delta Case v. France, judgment of 19 December 1990, Series A, No. 191-A, p. 16, para. 36.
160 Ibid., para. 37.
161 Eur. Court HR, Case of Unterpertinger v. Austria, judgment of 24 November 1986, Series A, No. 110, pp. 14-15, para. 31.
162 Ibid., p. 15, paras. 32-33.
Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers
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