Self-Incriminating Evidence, Ill-Treatment, and the Notion of Fair Trial under the European Convention on Human Rights

Abstract

In 2010, the European Court of Human Rights faced a daunting task when it was called upon to give a Grand Chamber judgment involving a defendant, a murderer of a child, who had prior to his conviction been submitted to police brutality in a situation where the police had believed that the child could still be rescued. As his remedy, the defendant pursued that the state had violated against him the prohibition of torture and other inhuman or degrading treatment, as well as his right to fair trial. Accordingly, the defendant called for violations of the European Convention on Human Rights in its articles 3 and 6, respectively. Referring to the absoluteness and non-derogability of the principle, the Court found that the state had indeed violated the prohibition of inhuman treatment, as it had forcibly obtained testimony from the defendant. However, in an arguably unprecedented fashion, the Court found that this same chain of events, simultaneously, amounted to no violation on the defendant’s right to a fair trial.

Understandably, the case activates profound considerations in terms of the right to a fair trial, a multifaceted omnibus provision in the European Convention. Importantly, it involves the long-established principle called the privilege against self-incrimination, designed to protect the defendant’s procedural rights by allowing him to remain silent and refrain from testifying against himself. Furthermore, it prompts one to consider the utility of all evidence that has been acquired against the spirit of this privilege, e.g. via forced confessions. Such considerations showcase the technicalities that may be involved, while meanwhile the human rights scope of “fair trial” nonetheless requires that such issues must be afforded due weight. Furthermore, self-incrimination highlight the defendant’s own agency, prompting one to consider the conditions that the European Convention demands from human rights waivers. This thesis, essentially, considers the effect that the absolute prohibition of ill-treatment should legally entail towards these procedural rights and the fairness of the trial proceedings as a whole.

This work is grounded in legal dogmatics, as it especially examines the capacity of the discussed norms to converge with one another. This convergence marks the need to reconcile two fundamental human rights norms that are crafted in very different ways. Especially the notion of absoluteness provides an interesting point of departure, as this thesis essentially considers whether the absoluteness of the prohibition of ill-treatment should, as a peremptory principle of international law, carry over also to the ambit of fair trial whenever a collision with these norms occurs. Making extensive use of the Court’s case law, this thesis argues that the extensive and nuanced doctrines that the Court has cultivated around the idea of fairness serves to give plenty of tools to tackle the research problem, even without the need to always revert to the absolute backdrop behind ECHR art. 3.