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 ***** 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 287