Faculty of Law

2014/2015

Concepts of Criminal Procedure

Course book
European Law School, english track

Year 2
Course period 1
CRI3005

DEADLINE VOOR INSCHRIJVEN ONDERWIJS PERIODE 2: 14 SEPTEMBER

INSCHRIJVEN ONDERWIJS PERIODE 3: 1 JUNI 9 NOVEMBER
DEADLINE REGISTRATION EDUCATION PERIOD 2: SEPTEMBER 14
REGISTRATION EDUCTION PERIOD 3: JUNE 1 NOVEMBER 9
MAASTRICHT UNIVERSITY
FACULTY OF LAW

CONCEPTS OF
CRIMINAL PROCEDURE

COURSE BOOK

EUROPEAN LAW SCHOOL

ENGLISH LANGUAGE TRACK
BACHELOR - YEAR 3
2014-2015 PERIOD 1
CRI 3005
TABLE OF CONTENTS

Staff Information p. 3

Course description p. 3

General Introduction p. 4

Teaching Method p. 5

Assessment p. 6

Required Reading Materials p. 7

Schedule Lectures and Tutorials p. 9

Week 1 What is criminal procedure? p. 10

Week 2 Criminal investigations: Methods and Actions p. 14

Week 3 Suspect Interrogations and Confessions p. 19

Week 4 Pre-trial detention p. 23

Week 5 Decision to prosecute, right to discovery and

pre-trial case disposal p. 27

Week 6 The trial p. 31

Week 7 Illegally obtained evidence p. 37

2
STAFF INFORMATION

Course Co-ordinator:
Mr. Dr. Michele Panzavolta
E-mail: m.panzavolta@maastrichtuniversity.nl
Office: Room D 1.207
Tel: 043-3883366

Members Planning Committee and Tutors:

Mr. Dr. Tom Dieben
E-mail: thom.dieben@maastrichtuniversity.nl

Ms. Ana Petrova

E-mail: a.petrova@student.maastrichtuniversity.nl

Ms. Merle Temme

E-mail: m.temme@student.maastrichtuniversity.nl

Ms. Jasmine Styles

E-mail: jasmine.styles@maastrichtuniversity.nl

COURSE DESCRIPTION

The Course is an introduction to the study of criminal procedure and it aims at providing the
basic notions and concepts on the functioning of criminal justice systems across Europe.

Criminal procedures of different countries are very different. Every country has its own
Criminal Procedural Code or other regulations which define how crimes are to be detected,
investigated and tried. These regulations contain procedural rules which reflect the countrys
unique history, institutions and the legal tradition.

There are however important similarities in the way criminal procedures operate. After all the
criminal process raises everywhere the same universal problems concerning the relationship
between security and liberty, the tension between assuring an efficient enforcement of the
criminal law and granting an adequate protection to individual safeguards. The national rules
depart in the way they balance the conflicting interests. Despite the different emphasis on one
or another of the values at stake, the general underlying problems are the same.

Behind the different national structures, one can observe a common skeleton of the criminal
process in the different European countries. Almost everywhere criminal investigations start
with a suspicion over the commission of a crime which may lead to the arrest of a suspect.
Then the process of collecting evidence for finding out the effective existence of the crime
and its author follows, based on which a State law enforcement authority (either the police, or
a prosecutor or an investigative judge) decides whether the case should proceed to trial. The
defendant is tried in front of an impartial judge (a professional, a layman or a jury) who

3
decides whether he is guilty of the impugned crime(s) on the basis of the evidence adduced. In
most countries, defendants are represented by a counsel, whose role is to protect their
interests.

Furthermore, after the second World War a number of international instruments have entered
into force, with a view to ensuring a better protection of human rights. Such instruments place
significant limitations on the possibility for States to freely shape their criminal justice
systems and they have lead to a growing convergence of the different national procedures.
Convergence has been higher between European systems, due to the role played by regional
organizations, in particular, by the system of the European Convention of Human Right and in
more recent times by the European Union.

It is due to this supranational factor and to a reciprocal cultural influence that the guarantees
of fairness of the criminal proceedings look similar across most jurisdictions. For example,
suspects enjoy a right to remain silent, the police may not apply certain coercive powers
unless there is a reasonable suspicion that a crime has been committed (the so called
probable cause in common law countries), and unless the safeguards against the abuse of
such power are met. At trial, confessions obtained involuntarily, i.e. in defiance of the
suspects will, can not be used as a basis for a conviction. Prosecution must prove beyond a
reasonable doubt that the defendant committed the crime (s)he is accused of.

Finally, one should not forget that the criminal process is daily shaped by the surrounding
society and that in times of globalization the distinctive features of national societies tend to
reduce. Not surprisingly many countries share common trends in the development of their
criminal proceedings, which reflect the common challenges that these countries face. One
example is the growing popularity of pre-trial case disposals, abbreviated trials and other
ways to speed up and simplify the proceedings.

This course will focus mostly on the commonalities between the criminal procedures of
different countries in order to see the emergence of general (European) concepts of criminal
procedure. However, here and there differences will be highlighted to better understand the
relativity of some concepts and the difficulty to always strike a sharp and uncontested balance
between the different interests at stake. A special emphasis will be put on the safeguards of
fairness, which are embedded although to different extent in every criminal procedural
system, and the fundamental rights of individuals affected by the proceedings.

This course represents an unortodox approach to the study of comparative criminal

proceedings. Instead of comparing different systems, and their institutions, it strives to
illuminate the common underlying principles and concepts behind these systems and
institutions. The objective is to equip students with such knowledge that would enable them to
look with more insight (and criticism) at their own national criminal procedural system, or
any other system that they choose to study.

4
GENERAL INTRODUCTION

Diversity and unity

Criminal justice systems in Europe and beyond differ from state to state. These differences
reflect the historical roots, political and socio-economic structures and cultural traditions of
the separate states. Nevertheless, the systems also have much in common, because most of
them share the same societal background (like most Western-European countries) and because
they are confronted with identical problems in coping with crime. Furthermore, they are all
bound by fundamental human rights embodied in International Conventions, like the
European Convention on Human Rights (ECHR), governing and restricting the enforcement
of criminal law. Therefore, the systems show both differences and similarities.
Many systems have been classified according to certain factors and criteria as belonging to
either one of the two major legal traditions, i.e. the adversarial or common law systems and
the inquisitorial or civil law systems. While the system of criminal justice of England and
Wales is part of the Anglo-American adversarial (or accusatorial) family, just like its
American homologue, systems of Continental Europe are by opposition usually labelled as
inquisitorial, meaning that they are not chiefly characterized by adversarial features. Although
this classic dichotomy can still retain some value for understanding certain cultural features of
each of the two traditions (common law v. civil law), it is important to acknowledge that the
borrowings between the two have been so extensive that it is no longer possible to classify
any of the criminal justice systems in Western Europe as wholly accusatorial or wholly
inquisitorial (J.R. Spencer).

Crime control and legal protection

The need for conducting comparative research in the field of criminal procedure is evident for
several reasons.
In Europe and even on a global scale a strong tendency exists towards more convergence and
harmonization, once inspired by the internationally propagated war on drugs and lately
reinforced and expanded by the war on terrorism. Europeanisation and globalisation demand
adjustments of the diverse systems to each other and close cooperation between them in an
area without borders. After all, crime in all its facets usually knows no frontiers as well.
Therefore, practical cooperation and mutual assistance in criminal law matters requires
knowledge of the diverse systems for the sake of effective police investigation, prosecution,
administration of justice and defence.
But it not only revolves around effectively controlling crime at all costs. As said, there is
some unity in the diversity of systems in that they are governed by fundamental (constitutional
and human) rights, providing legal protection to criminal suspects and defendants.
Cooperation also demands respect for alleged offenders and to treat them as legal subjects.
This balancing of effective crime control and adequate legal protection is the core business of
every criminal justice system. It is also the main theme in this course. We will discuss some
central issues of criminal procedure in the various systems and compare them from this
perspective. Fundamental rights are considered the final touchstones in this comparative
analysis.

5
General characteristics

In general, criminal procedure provides for rules and principles on the application of
substantive criminal law to crimes that have been committed (or are on the verge of being
committed) and to alleged offenders.
Law enforcement agencies, like the police and the prosecution service, have many coercive
means at their disposal in investigating crimes that can intrude deeply upon privacy and
liberty interests of both the criminal suspect and the law abiding citizen.
Criminal investigations aim at truth-finding and gathering evidence in order to successfully
prosecute the alleged perpetrators, take them to court and have them convicted and punished.
Throughout the steps in the process, criminal defendants are entitled to legal assistance of
counsel in their own defence. Moreover, during pre-trial investigations judicial oversight (by
a judge of the investigation) guarantees the rules are properly followed and principles fully
respected, particularly in situations where privacy and liberty interests are seriously at stake.
In the courts independent and impartial judges or juries eventually assess whether the
proffered evidence is not only lawfully obtained but also is convincing beyond a reasonable
doubt to support a conviction.

Central topics

In this course we will discuss the nature and goal(s) of criminal procedure, emphasizing the
inherent tension between crime control and legal protection and focusing on fundamental
rights. We will elaborate on the notions, key values, objectives and principles of criminal
proceedings (week 1).
After that, we will deal with the different stages of criminal proceedings. The criminal process
can essentially be divided in two phases: investigations and trial.
Four meetings will be devoted to the criminal investigations, two meetings to the trial phase.
The idea is to watch the criminal process as it unfolds and hence cover the basic steps of
criminal proceedings: we shall start dealing with the powers that are given to public
authorities for investigating on crimes (week 2), and we will focus on interrogations in
particular (week 3). Next, we will concentrate on pre-trial detention (week 4). We will then
move on to the decision to prosecute, diversion and plea bargain and right to prepare the
defence for trial (week 5). At last we will analyse the main characteristics of the trial phase,
with particular regard to the rules concerning evidence gathering and evaluation (week 6) and
the rules for excluding illegally obtained evidence (week 7).
Throughout the course, we will dwell upon the basic notions and concepts of criminal
procedure, such as e.g. defendant, public prosecutor, pre-trial case settlement, jury
trial, presumption of innocence, burden of proof, etc. We will also look at the safeguards
of fairness embedded in each of these stages, such as, for instance, the right not to be deprived
of personal liberty save when there is a probable cause that the suspect committed a crime. All
topics will be addressed in the light of the procedural rights of the accused and of the principle
of the presumption of innocence.
The main concepts and terms introduced in each Session are listed below under the title of the
Session (keywords).

6
OBJECTIVES

The aim of this course is to get acquainted with the concepts which underlie the processes and
institutions through which criminal cases are detected, prosecuted and adjudicated in different
countries. Furthermore, the goal is to get a taste of how these main concepts are interpreted
and implemented by different countries by looking at concrete examples from national
jurisdictions. Of special importance is the development of the ability in understanding and
critically assessing practices of criminal law enforcement from the perspective of fairness of
criminal proceedings and the procedural safeguards derived from fundamental human rights.

TEACHING METHOD

The course on Comparative Criminal Procedure will combine (7) lectures and (7) group
tutorials. In the lectures, the scope of some general principles governing aspects of (different)
systems of criminal procedure will be discussed and illustrated by court decisions. The group
tutorials deal with the application of these principles in court decisions by the European Court
of Human Rights (ECtHR) and by other national courts. Next, the students have to apply the
principles and judgements to hypothetical cases (included in this course book).
The course requires regular attendance and active participation, as well as thorough
preparation for each session. According to the philosophy of problem-based learning, tutorial
meetings shall be used to discuss the issues by the students under the guidance of the tutor.
The tutor will take the role of chairing the sessions. The tutorials are aimed at stimulating
active participation, broad interaction and lively discussions by students. They are not meant
to be a form of frontal teaching in which the tutor is lecturing constantly and telling students
what the answers to the problems are.

FINAL ASSESSMENT

The final grade will be based on a written exam. You will receive further information about
the exam and the resit during the tutorial groups and on EleUM.
Date, place and time of the exam will eventually be announced on EleUM.
The detail of the grades will be published on Eleum. If for privacy concerns a student wishes
not to have the grade posted on Eleum, he or she should appropriately inform the tutor before
the exam takes place.

7
READING MATERIALS

Under each Session there is a list of required and recommended readings.

There is no textbook for the course. The course material consists of cases originating from
courts of different countries, as well as international tribunals such as the European Court of
Human Rights (ECtHR); and selected literature which is included in the reader.
It is essential for students to print (and come to class with) a copy of the European
Convention on Human Rights (ECHR).

READER (printing on demand)

Containing all prescribed pages of:
1. Andrew Ashworth, Why Bother with Rights When Public Safety is at Risk?, in
Andrew Ashworth, Human Rights, Serious Crime and Criminal Procedure, 2002,
London: Sweet & Maxwell, pp. 1-49 (ISBN 0421 783001)
2. Herbert L. Packer, The Limits of the Criminal Sanction, Stanford University Press
1968, Chapter 8, Two Models of the Criminal Process
3. MireilleDelmas-Marty-John Spencer, European criminal procedures, Cambridge
University Press, 2002, pp. 5-50
4. Stefan Trechsel, Human Rights in Criminal Proceedings, Oxford University Press
2005, pp. 534-561;
5. W. Wu, Interrogational fairness under the European Convention on Human Rights, 39
(1) International Journal of Law, Crime and Justice (2011), pp. 39-57;
6. Stefan Trechsel, Human Rights in Criminal Proceedings, OxfordUniversity Press
2005, pp. 502-533;
7. Peter Tak, Introduction, in Peter J.P. Tak (Ed.), Tasks and Powers of the Prosecution
Services in the EU Member States, Volume I, Wolf Legal Publishers, Nijmegen 2004,
pp. 1-13 (ISBN 90-5850- 087);
8. Stefan Trechsel, Human Rights in Criminal Proceedings, Oxford University Press
2005, pp. 222-236;
9. John R. Spencer, Hearsay Evidence in Criminal proceedings, Hart Publishing,
Portland, Oregon, 2008, pp. 39-51;
10. Bas de Wilde, A fundamental review of the ECHR right to examine witnesses in
criminal cases, The International Journal of Evidence & Proof, 2003, 17, 157-182
(Print ISSN 1365-7127; online ISSN 1740-5572;
11. John R. Spencer, Strasbourg and defendants rights in criminal procedure, The
Cambridge Law Journal, 2011, vol. 70, pp 14-17;
12. John R. Spencer, The concept of European evidence, ERA Forum, Volume 4, Number
2, 29-38
13. Guido Calabresi, The Exclusionary Rule, Harvard Journal of Law and Public Policy,
2003, p. 111-118 (ISBN 0 193 4872)

COURT DECISIONS

During the course a number of court decisions must be studied, mainly from the European
Court of Human Rights (ECtHR).

8
The judgements that are relevant for the course can be retrieved on the internet, at the
HUDOC website (http://echr.coe.int/echr/en/hudoc). The students are required to find the
cases themselves (as this is also part of the learning process).
Further announcements concerning the cases to be studied will be made in class.

QUESTIONS AND CASES

This coursebook is divided into sessions. Per session you will find a brief introduction, a list
of questions and a series of hypothetical fact patterns of cases to be solved.
The questions are meant to be of guidance to you in understanding the topics and solving the
cases.
The cases are intended for you to mould the theoretical knowledge you have gained.
You are required to both answer the questions and solve the cases although the discussion in
class will mostly revolve around the cases.

9
SCHEDULE LECTURES AND TUTORIALS

STRUCTURE

Lectures
Week One: Introduction to Criminal Procedure.
Michele Panzavolta

Week Two: Case-law Analysis

Michele Panzavolta

Week Three: Right to silence and interrogation

(speaker to be announced)

Week Four: Pre-trial detention

(speaker to be announced)

Week Five: The fair trial

(speaker to be announced)

Week Six: Film viewing and discussion

Week Seven: Concepts of criminal procedure in a nutshell

(speaker to be announced)

Tutorials
There will be seven tutorial meetings. Dates and times of tutorials will be communicated by
the education office. Meetings will be one per week for two hours. The topics are:

Week One What is criminal procedure?

Week Two Criminal investigations. Methods and actions

Week Three Suspects interrogations and confessions

Week Four Pre-trial detention

Week Five Prosecuting decisions and right to prepare the defence

Week Six The Trial

Week Seven Illegally obtained evidence

Check on EleUM regularly for announcements of any kind !!

10
WEEK 1

LECTURE 1:
INTRODUCTION TO COMPARATIVE CRIMINAL PROCEDURE
Michele Panzavolta
(Time and location to be announced on Eleum)

------o---o---o---o---o---o-----

TUTORIAL. SESSION 1
WHAT IS CRIMINAL PROCEDURE?

KEY TERMS
Criminal charge Crime control
Due process Truth-finding
Fair trial Presumption of innocence
Procedural economy Fundamental rights

INTRODUCTION
We start the first session with introducing ourselves and explaining:
- goal and structure of the course,
- attendance and student participation,
- required literature (book, reader, court decisions and casebook),
- final exam.

We will then proceed to the topic of the first session: What is criminal procedure, and what
are its objectives and goals? What are the values inherent in each criminal procedural system?

Procedural law is the set of rules for adjudicating on a criminal case, i.e. for determining
whether an individual has or not committed an offence and for sentencing the culprit. It was
invented because the manhood needed to find a way to resolve legal conflicts (more civilized
than tit for tat). Cases concerning the application of criminal law are dealt with by means of
criminal proceedings, whilst the others are addressed by means of civil or administrative
proceedings. Every crime should be dealt with by way of criminal procedure, whilst all other
wrongful acts (e.g. torts, administrative violations) should not. It is the law of each country to
determine, in accordance with the principle of legality, which offences constitute a crime and,
as a consequence, which cases are to be dealt with via the criminal process.

11
Criminal procedure has stronger guarantees of legal protection of the defendant than e.g. civil
or administrative procedure. That is because it is presumed that what is at stake for the
defendant when she is facing a criminal accusation is more serious than, e.g. if she has to
defend in a civil lawsuit. In all countries the law sets the relevant criteria for determining
whether a case deserves the application of the stronger procedural guarantees afforded by
criminal justice.

In all countries criminal procedure has similar, albeit competing, objectives: to investigate and
punish crime (find out the truth about what has happened), to protect the innocent against
false criminal accusations (to safeguard against the abuse of the state power), and to resolve
the conflict which emerged as the result of the crime that has been committed. These
objectives attain a different degree of priority in relation to one another in the criminal justice
policies of different countries at various times.

All systems of criminal procedure operate under the structural tension between crime control
(or instrumentality) and due process (or legal protection). This tension will function as a red
thread in all sessions.

Finally, all criminal procedural systems in liberal democracies follow - at least in books a
similar set of principles. An overarching principle is the principle of due process or fair trial.
Others include, for instance, the principles of protection of individual rights, presumption of
innocence, procedural economy, independence and impartiality of adjudication.

Questions:
What are the inherent characteristics of a criminal procedure (what makes it different
from civil or administrative procedure)?
What are the objectives of criminal procedure?
What does the tension between crime control and due process entail?
What are the principles governing criminal procedures?
What does adversarial mean?
What is the opposite of adversarial?
What are the traditional features of Anglo-American criminal trials as opposed to
continental trials?

CASES
Case study 1 (The Ticking Bomb)
After a long investigation on a terrorist group, the night of the 9th September 2011 the police
arrests Mr. M. at his house on the charge of participating to a terrorist group and furthering
terrorist activities. In the house of Mr. M. the police finds guns and explosives. Brought to the
police, Mr. M. proudly admits that he took part to several terrorist offences in the past years.
He also announces in form of defiance that another terrorist attack is planned for the 11th of
September where a bomb will explode in a crowded place and will cause the death of many
civilians. The police officers immediately turn to ask him questions about the forthcoming
attack but Mr. M. refuses to say a word on it.
The three police officers discuss then what to do.
Police officer MacTough is of the opinion that they should give the suspect a third degree,
threatening to use force or even using torture if necessary.

12
Police officer Oquiet suggests instead that that they should go on interrogating the suspect. If
they do not get straightforward information on the future attack they might still gain some
details on his accomplices, on the terrorist groups and on past actions which could be helpful
to carry on investigations.
Police officer Sly proposes to carry out immediate searches in all the houses of people with
some connection to terrorism.
After a long discussion the officer decide to follow a more elaborate strategy. One officer will
question Mr. M. doing all that it takes to get the truth out of him. Several squads will be sent
out to carry out searches in the house of people who are suspected of having had relationship
with the arrested terrorist.
At 8 at night of the following day after ten hours of brutal interrogation Mr. M. finally
confesses where the future attack will take place and how. The police try immediately to
adopt an evacuation plan of the place targeted by terrorists but while they get onto action the
bomb explodes in the street where the Central Bank is located killing six people and seriously
injuring other eight.
Mr. M. and his accomplices are brought to trial some months later with regard to the bombing
attack of 11 September. At trial the counsel for Mr. M. argues that all evidence against his
client be set aside in that it was collected in violation of basic human rights, i.e. by using
torture against his client.

- What are the conflicting interests at stake in the case?

- Put yourself in the position of the officers in charge of the investigations: which of the three
different strategies (MacTough, Oquiet, Sly) would you endorse?
- Is the use of violence/torture illegal? Can it be justified in extreme cases (serving a higher
purpose)?
- When it is impossible to strike a fair balance between prosecution and liberties, which of the
two should receive preference?

Case study 2 (Zo snel mogelijk)

In country X, a new method of dealing with criminal cases is being experimented with.
The idea is to reach the final decision for the simple criminal cases, i.e. where a suspect
confesses and no further investigation is needed, as quick as possible, namely between 6
hours and 3 days.
The final decision on these cases will be taken by the public prosecutor. According to the
countrys law, a public prosecutor may unilaterally (i.e. without a court hearing) impose
sanctions in cases which are punishable by the maximum prison sentence of up to 6 years.
The prosecutor may choose from a range of criminal sanctions, including payment of a fine,
community work, etc. (but he is not entitled to impose a sanction of imprisonment). A
prosecutor may apply this case-ending option only if the suspect confesses guilt.
The speediness of resolving cases under the terms of the new experiment will be ensured in
the following manner:
Representatives of the public prosecutor office, lawyers and social workers will be
permanently present at the police station. When a suspect is arrested, he or she will have an
opportunity to consult with a lawyer present at the police station (or by means of a
videoconference), for no longer than 30 minutes. Then the suspect will be interrogated by
police. After that, the prosecutor will decide whether the case can be dealt with under the
speedy procedure.
As the second step, the suspect, a lawyer, a prosecutor, and a social worker if necessary, will
discuss which sanction should be applied to the suspect. The sanction will be executed on the
spot.

13
The government believes that more than half of all criminal cases may be disposed of in this
manner.
The government argues that this process will decrease greatly the administrative burden on
law enforcement and prosecution authorities, and will reduce significantly the number of
cases going to court.

- Is the new method inspired more the due process model or to the control model?
- What are the features of this method which adhere more closely to the model?
- What rights are infringed or restricted in the proposed system?
- Is efficiency a value in the criminal justice system? Does the new method strike a fair
balance between the right to a fair trial and efficiency?

READINGS
Literature
- Herbert L. Packer, The Limits of the Criminal Sanction, Stanford University Press 1968,
Chapter 8, Two Models of the Criminal Process (reader)
- MireilleDelmas-Marty-John Spencer, European criminal procedures, Cambridge University
Press, 2002, Chapter 1, pp. 5-50 (reader)
ECtHR Case-Law
ECtHR, Grand Chamber, 1 June 2010, Gfgen v. Germany (Application no. 22978/05)

14
WEEK 2

LECTURE 2:
CASE-LAW ANALYSIS
Michele Panzavolta
(Time and location to be announced on Eleum)

------o---o---o---o---o---o-----

TUTORIAL. SESSION 2
CRIMINAL INVESTIGATIONS. METHODS AND ACTIONS.

KEY TERMS

probable cause Warrant

Search Domicile
Seizure Surveillance
Interceptions of communications Covert policing
Right to privacy Proportionality principle

INTRODUCTION
Criminal proceedings commence when a suspicion arises that a crime has been committed.
They start by opening formal investigations on the alleged criminal deed.
During this phase the investigating authorities try to shed light on the alleged crime and by
collecting information they try to come up with a hypothesis on the commission of the crime.
If they cannot formulate any hypothesis after thorough investigations, the case will be
dropped due to the lack of evidence. If instead they can find evidence on the commission of
the crime and find out who committed and how, the case may be taken to trial where the
findings of investigations will be tested in open court through the parties confrontation.
The authorities in charge of the investigations vary from country to country. For instance, the
police have everywhere the primary role of investigating but while in England they are the
sole authority responsible for investigating crimes, in continental systems the police act under
the direction and supervision of the public prosecutor who has the lead in investigating. Some
continental countries, such as France, Belgium and the Netherlands, also provide in some
cases for the involvement of an investigating judge, who carries out the investigations.

The ways in which the police (or the prosecutor) get to know that a crime has (probably) been
committed may vary. For example, they could get this information from a victims complaint

15
or from a citizens report to the public authorities, or from newspapers and other journalistic
sources. A suspicion that a crime has been committed may also arise when the law
enforcement authorities carry out their duties: e.g. when the police patrol the street or when
they check on the regular course of certain activities or when they carry out other criminal
investigations, or when they are alerted by informants.
Once the law enforcement authorities have become aware of the commission of a crime, they
conduct investigations to discover all the elements of the criminal offence (the author, the
actus reus, the mens rea).

In this session we concentrate on the investigation methods that are available to the police and
prosecution service (and, where provided, to the investigative judge) for investigating crimes.
The prosecutor, the police or the investigating judge can gather information from witnesses by
questioning them, or they can carry out scientific analysis of the crime scene.
Nonetheless law enforcement authorities often need more coercive or intrusive powers, which
restrict the peoples liberty. Since crimes and criminals hide in the dark, it is sometimes
necessary to employ more invasive measures.
For this purpose the agencies can search people (restricting their personal liberty and their
privacy) or private places (limiting privacy and the right to the inviolability of the domicile).
During the search, items founds can be seized (limiting the right to property) when they
appear somehow connected to the alleged criminal act. Criminal suspects and other persons
allegedly involved in the crime may be placed under physical or electronic surveillance.
Police may use informants to obtain information about the suspected criminal activity. We
will thus focus on the non-interrogatory means of pre-trial criminal investigations available to
the police and prosecution service in finding the truth.

All of these investigation methods encroach to some extent on individual rights and liberties,
and particularly the right to privacy. Thus, the aim of carrying out fruitful investigations (or,
to put in other terms, the aim of finding the truth) always has to be balanced out with the
interests of protection of individual rights.
Needless to say, due to their intrusiveness on liberties, searches, seizures, surveillance and
other coercive techniques should only be applied under strict conditions provided for by the
law. They general principle is that the more intrusive the investigative measure is, the more
safeguards against abuse of investigative powers are required.
But are there, or should there be, boundaries to the exercise of these powers? And if so, where
should these boundaries lie? For example, should the police be always allowed to search any
place, to tap any conversation, or not? What safeguards are needed to assure that the use of
coercive powers does not represent an abuse to the citizens freedom.

In this Session we will explore the tensions between the use of selected investigative
measures and individual rights. In particular, we will focus on the limitations of personal
liberty and privacy rights in the context of criminal investigations, particularly with regard to
searches, audio- and video-surveillance and the use of police informants. We will also address
a very specific issue of entrapment, or incitement to commit a crime, by police informants.

Questions:
What are the investigations aimed at?
What investigative acts can be carried out during the investigations?
Which of these methods/acts are intrusive, i.e. invade privacy and liberty of citizens?
Why is legal regulation of the way in which these measures are conducted important?

16
 What level of suspicion is required to instigate intrusive investigative measures? Is
there a difference measures restricting personal liberty and measures restricting
privacy?
What are the conditions for the interference of privacy according to the ECHR and
related case-law?
What is private sphere? What is a private place?
What is a search?
Under what conditions may searches of places be conducted? Under what conditions
may searches of stopped or arrested persons be conducted?
What is a covert operation?
What is surveillance? What are the legal safeguards provided for it?
What are the conditions for intercepting a telephone communication?
What are the legal safeguards against abuse of power by police when conducting
intrusive investigative measures?

CASES
Case 1 (Do you like helicopters?)
In one of the districts of Streetlandia a burglary has recently taken place. The burglars have
stolen from the house of John Swift, a reknown engineer employed by the Helicompany Ltd.,
the documents of a new industrial design of a helicopter. The police grope in the dark, hence
they decide to start out investigations by carrying out searches in the premises of the two
competing companies in town.
Early in the morning two policeman break in the offices of the Aviation Ltd when only few
hardworking employees are present. The officer tells the employees that they are conducting
investigations and that they want to search the place. The policemen start a thorough search
everywhere. During the search one of the employees present, Phil Openmouth asks what is
the reason of the search and one of the policeman briefly answers it concerns the industrial
design of a new helicopter. Phil turns to Rick, another employee, and says: Is it not the
design you were talking about last week?. Rick looks angrily at Phil. The policemen
immediately approach Rick and tell him that they are going to search him in accordance with
article 244 of the code (which empowers the police to search without a warrant in urgent
cases). Raising his arms, Rick mumbles go ahead and the policemen check his pockets.
They take out Ricks wallet, where they find two papers with an industrial design of a
helicopter.

Case 2 (Soft drugs, hard drugs: whats the difference?)

A popular local newspaper denounces that in Eurocity the level of trafficking of soft drugs has
reached an unprecedented level. The article reports the rumor according to which the rise in
this trafficking is due to the action of a notorious local gang.
Under strong media pressure, the police start the investigations. They decide to place a
number of CCTV cameras in the neighborhood where the gang hangs out. At the same time,
they decide to target the leader of the local gang, Potta Rhyme, and put him under
surveillance. To that end, they first install a gps device in Pottas car to discover the places
that he regularly visits. But they do not manage to find any incriminating evidence.
With the media pressure growing, the police decide to seek judicial authorization to install a
tapping device (i.e. a device for listening to the conversations within the vehicle in real time)
in Pottas car. According to national law, in fact, surveillance measures that entail the

17
listening of conversations, the taking of pictures in private places or the recording of images
in private places can be imposed only for serious crimes punishable with no less than 3 years
imprisonment (including any type of drug trafficking), under the prior authorization of a judge
and when there is evidence that the targeted person was connected with the crime. The
surveillance cannot last for more than three months and irrelevant data must be destroyed at
the end of the investigations. The judge authorizes the measure because the legal conditions
are met and Potta Rhymes is a well-known dangerous gangster which must be kept under
surveillance.
For three months the police track down the conversations of Potta with some, though not full,
success. Some exchanges of the taped conversations clearly show that Potta is aware of the
net of drug trafficking and that he sees drug selling as a virtuous activity. In one
conversation he talks of stoned money and selling bags of tea. The police cannot grasp
anything beyond these ambiguous expressions. Most of the overheard conversations are
spoken in an incomprehensible slang, which the police cannot decode.
The police then asks the prosecutor to employ an undercover agent pretending to be a buyer
of drugs. The permission is granted. This undercover agent managed to get in touch with Potta
and to gain his confidence. Initially, the agent only bought small amounts of soft drugs not
enough to nail Potta for large scale dealing. The agent got instructions to push a little harder.
Eventually, he asked Potta if he could sell him a fair amount of cocaine. Potta hesitates for a
moment, but is readily convinced by the agent of the profitable business of dealing in hard
drugs. Upon delivery Potta is arrested.

READINGS
Read carefully Article 5 and 8 ECHR
Literature
- Stefan Trechsel, Human Rights in Criminal Proceedings, Oxford University Press 2005, p.
535-561 (reader)
ECtHR Case-Law
ECtHR, Funke v. France, 25 February 1993 (Application no. 10828/84) [only the parts on
Art. 8, the parts on Art. 6 for next session]
ECtHR, Buck v. Germany, 28 April 2005 (Application no. 41604)
ECtHR, Gillan and Quinton v. The United Kingdom, 12 January 2010 (application no.
4158/05)
ECtHR, Uzun v. Germany, 2 September 2010 (Application no. 35623/05)
ECtHR, Teixeira Castro v. Portugal, 9 June 1998 (Application no. 44/1997/828/1034)
Further optional readings:
ECtHR, Bykov v. Russia, 10 March 2009 (Application no. 4378/02)

18
WEEK 3

LECTURE 3:
RIGHT TO SILENCE AND INTERROGATION
(Speaker, time and location to be announced on Eleum)

------o---o---o---o---o---o-----

TUTORIAL. SESSION 3
SUSPECT INTERROGATIONS AND CONFESSIONS

KEY TERMS

Interrogation Information about the rights/Miranda

Involuntary confessions
Improper compulsion/unlawful
pressure during questioning
Spontaneous confession
Privilege against self-incrimination
Right to legal assistance
Court-appointed/legal aid counsel
warnings
Waiver of the right to legal assistance
Right to remain silent (privilege against
self-incrimination)
Adverse inferences from silence
Effective legal assistance

INTRODUCTION

Suspects have rights during criminal investigations, in particular, when the investigators
(either by the police or by the prosecutor /investigating judge) question them. In most
jurisdictions the interrogation of the suspect plays a central role in investigations. The suspect
is a valuable source of information for the investigating authorities. Obtaining information
about the crime directly from the suspects offers the most reliable kind of evidence, hence it
saves time and resources on the side of police and prosecution agencies. Suspects assuming,
of course that they are guilty of the alleged crime - are the best source of information
expecially on the subjective element of the crime, i.e. the mens rea.

In this Session we will explore what is an interrogation and how it ought to be conducted,
Authorities may interrogate suspects formally, e.g. following an arrest at the police station,
but also informally, for instance by asking questions on the street. Interrogations are normally
conducted by the officials (police, prosecutors or investigative judges), but they also may be
conducted by lay people, e.g. police informants.

19
The suspect has the right to remain silent (or privilege against self-incrimination, nemo
tenetur se detegere), which also entails the suspects right to be informed about such
privilege. The right to silence plays a crucial role in interrogations. We will examine the scope
of the right and how it affects the rules and procedures for conducting interrogations.
Until recently not all European countries granted the suspect the right to be assisted by a
counsel during the interrogations but a decision of the ECtHR has changed the situation.

Confessions have a considerable weight as incriminating evidence. Police and other

investigative authorities strive to obtain a confession because this would save their efforts to
solve the crime. For courts, confession is often an ultimate proof of the defendants guilt.
For all these reasons, the risk of improper compulsion during the suspects questioning is
always very high. Police and prosecutors might be tempted to induce the suspect to confess.
Furthermore, if excessive pressure is applied on the suspect, there is a high degree of
possibility that the confession is false (remember the Inquisition trials!). In this Session we
will learn how to prevent improper compulsion, and what are the other legal safeguards
against involuntary and false confessions.

Questions:
When do the procedural rights of the defense start to apply?
What are the rights of accused when questioned?
What is the right to remain silent, and how is it different from the privilege against
self-incrimination?
When and how should suspects be informed about the right to silence and about the
right to legal assistance?
What does the right to the assistance of counsel entail?
What is effective legal assistance?
What are adverse inferences from silence?

CASES
Case 1 (Whats for lunch?)
In Northern Caldonia two police officers in plainclothes have arrested the suspect of the
kidnapping and killing of a child. They have to drive over five hours to the police station in
Caldonias capital.
Halfway the officers took the suspect, without handcuffs, into a restaurant for lunch. After the
waitress had taken their order, she began speaking about the murder which had received much
press attention throughout the State. The waitress expressed the hope that the police would
catch the offender, but she added that the person was probably sick and in need of help. Such
a person, she said would do both society and himself a favour by turning himself in and
getting the medical help he needs.
When she left the table, the suspect started crying and informed the officers that he had not
meant to kill the child.
His defence counsel later found out that the waitress was an undercover policewoman whom
the officers had instructed on what to say. The restaurant management had consented to the
ploy after being explained about the importance of obtaining admissions from the suspect to
assure his conviction.

20
Case 2 (In times of crisis)
Jeremy Burdock is the owner and director of a small manufacturing company that produces
furniture. Time ago the business flourished but the crisis has changed the situation and lately
things have gone for the worse. The company has become insolvent. Under the creditors
request the company is put in liquidation by an order of a civil court. Dr. Straight is appointed
as liquidator of the company with a view to collecting the company's assets, determining the
unpaid claims, and satisfying the creditors in the manner and order prescribed by law. The law
gives the liquidator the power to gather information from the companys managers who are
under a legal duty to answer. As it is common practice, Dr. Straight calls Jeremy for an
interview in order to get more information on the companys life in the past years and on its
assets. During the interview, Dr. Straight asks Jeremy explanations on several unreported
expenses made by the company for a total amount of 1.000.000,00 . Jeremy does not give
any explanations. Dr. Straights reminds him that he can be fined for uncooperative behavior.
Jeremy finally admits: I have taken the money. It was for family reasons, my wife had to
undergo a very expensive surgery..
Some weeks later, the prosecutor starts a criminal investigation for tax evasion against Jeremy
and they make inquiries on the financial statements of the company. Among other
investigative activities, the prosecutor collects from the liquidator the whole file of the
insolvency proceedings. After reading the statements given to Dr. Straight, the prosecutor
charges Jeremy with the offence of bankruptcy fraud involving the concealment of assets and
orders him to produce the statements of his bank account for the past three years.

Case 3 (The price of silence)

In the European Member State Helgonia, Tom Wolfe was charged with manslaughter.
One night he stood among a few people around a person who had been stabbed to death with
a knife. The police picked up the knife and asked the bystanders Has anyone of you seen
anything? Tom immediately said that the knife was his. Then the police arrested him.
In the squad car one officer asked him the following question; Was there a fight going on or
something tonight? Tom confirmed, but did not say anything else.
At the police station the police warned him before questioning that he had the right to remain
silent. They also told Tom that if he wanted to talk with a lawyer, that was possible, but then
he would have to remain for the whole night at the police station (and if not, he has a chance
to go home quicker). Tom answered that he wanted to go home soon so he did not want a
lawyer. In the meantime, Toms fingerprints were found on the knife.
The interrogation lasted 6 hours without any break. In the beginning of the questioning Tom
denied having stabbed the person. The police officer said to Tom during the interrogation,
inter alia:
Look, you said that the knife was yours, and you admitted that there was a fight. This is
enough for us to lock you up. We found your fingerprints on the knife. The judge will think
that you are guilty. You must understand this yourself, unless you are mentally retarded. So
why dont you confess now, and save all of us time.
Tomorrow we will question eyewitnesses and they will confirm that you stubbed the guy, so
why dont you tell us the truth now, and then the judge will take into account that you
cooperated with the investigation.
And then after Tom had denied having stabbed the person again and again
You know, sometimes people forget what they did, especially if it is something really bad.
Your fingerprints are on the knife: how would you explain this? Could it be that you forgot
that you stabbed the guy?

21
After that Tom said in a barely laudable voice: It could be that I had forgotten what precisely
happened during the fight. Are you happy with this answer? Can I go home now?.
The interrogation record, which Tom signed, contained the following text: the suspect admits
that he may have used the knife during the fight.

READINGS
Read carefully Article 6 ECHR
Literature
- W. Wu, Interrogational fairness under the European Convention on Human Rights, 39 (1)
International Journal of Law, Crime and Justice (2011), pp. 44-53 (until Section 3.2.3.2)
(reader)
- Stephen Thaman, Comparative Criminal Procedure, Carolina Academic Press 2008 (2nd
ed.), p. 85-103 (reader)
ECtHR Case-Law
- ECtHR, Funke v. France, 25 February 1993 (Application no. 10828/84) [only the parts on
Art. 6]
- ECtHR, Saunders v. The United Kingdom, 17 December 1996 (Application no. 1918/91)
- ECtHR, Salduz v. Turkey, 27 November 2008 (Application no.3639/02)
- ECtHR, Zaichenko v. Russia, 18 February 2010 (Application no. 39660/02).
- ECtHR, Allan v. The United Kingdom, 5 November 2002 (Application no. 48539/99)
- ECtHR, Dayanan v. Turkey, 13 October 2009 (Application no. 7377/03)

22
WEEK 4

LECTURE 4:
PRE-TRIAL DETENTION
(Speaker, time and location to be announced on Eleum)

------o---o---o---o---o---o-----

TUTORIAL. SESSION 4
PRE-TRIAL DETENTION

INTRODUCTION
While the criminal proceedings are underway the suspect can be restricted in her liberty and
placed in detention. This holds true particularly during the investigations.

Pre-trial detention is the most coercive in the range of measures available to the authorities to
limit the personal liberty and the freedom of movement of suspects and defendants whilst the
criminal proceedings against them are pending.
There are several reasons for imposing detention while proceedings are ongoing. The
application of pre-trial detention may be necessary if there is a high risk that the suspect
would escape from prosecution, threaten witnesses or otherwise tamper with the evidence, or
if there is a serious risk that she may commit further serious crimes.

The application of pre-trial detention raises challenging issues when looked at from the angle
of the presumption of innocence. Can a person presumed innocent be locked up just like a
man who was found guilty after a long and complicated trial? Is not pre-trial detention in
irremediable conflict with the presumption of innocence?

The deprivation of liberty is particularly burdensome to the defendant (and his relatives).
Hence, a strict principle of legality applies. It is for the law only to determine the precise
conditions under which suspects can be placed in detention.
Furthermore, detention should be applied with great restraint and under very strict conditions
in line with fundamental (human) rights. Indeed, pre-trial detention should be an exceptional
measure (extrema ratio) rather than the routine practice (although unfortunately in many
European and non-European countries it is rather the latter). Moreover, detention is not the
only tool available for protecting certain interests while trial proceedings are underway. The
legislation of almost every country provides in fact for milder ways of restriction of the
defendants personal liberty, e.g. home confinement, electronic monitoring, travel restrictions.

23
Arrest is another form of deprivation of liberty during criminal investigations. In every
country, when the police find a person in the act of committing a crime, they can arrest him in
order to prevent further harm to society. In some countries arrest is also possible when there is
a suspicion that a person has committed the crime. In the latter cases the person is restricted
usually for a short period of time.

In this Session we will learn what is the level of suspicion required and what are the
legitimate grounds for imposing pre-trial detention or for arresting a person. We will focus on
the procedural safeguards that are provided for persons deprived of their liberty before being
tried, such as for instance, the right to be brought promptly before a judge or another
competent authority, the right for a periodic review of detention, and the right not to be held
in pre-trial detention excessively long.

Questions:
- What is pre-trial detention?
- When can it be applied and for what reasons? By whom?
- What are the safeguards in the application of pre-trial detention?
- What are the safeguards in the execution of pre-trial detention?
- Is it possible to reconcile pre-trial detention with the presumption of innocence?
- What is arrest?

CASES
Case 1 (Terrorist flyers)
Rico Hernandez, a Basque citizen, is taking part to a demonstration for the independence of
his native region. He is suddenly approached by several police officers who swiftly handcuff
him. While he and his friends are thrown in the paddy-vagon an officer tells them you are
under arrest on the charge of being part to a terrorist group. Rico and the other demonstrators
are taken to the police headquarters. Rico is kept in police custody for four days and he is then
served with a judicial pre-trial detention order. In the order the judge explains that the
detention is based on the charge of being part to an independentist terrorist group. The
evidence that supports the charge comes from two police informants who have attested that
Rico was having regular meetings with other members of the terrorist group. Furthermore, at
the moment of arrest Rico was found in the possession of flyers inciting to the independence
of his region through all means, including violence. According to the judge, detention is
necessary to prevent the accused from persisting in the commission of the crime.

Case 2 (One drink too much)

In the European Member State Boldania John Steinbeck had a misfortune of riding into a car
of a famous pop-star, while driving under the influence of alcohol. As the result, the nose of a
pop-star was broken, because of which she could not participate in the Eurovision contest.
(The incident had later been widely reported by the press).
John was arrested and brought to the police station. The tests had shown that the alcohol level
in his blood was incredibly high (that it was in fact a clinical miracle he was still alive), they
let him sober up in a cell for 24 hours.
During questioning, John told the police that he had a very serious alcohol problem and that
he did nothing else but drinking all and every day.

24
Jack was brought before the investigative judge five days after his arrest. His appointed
counsel insisted that his client should be released from custody: he had fully admitted his guilt
and expressed his readiness to co-operate with the investigation. He was living permanently in
Boldania with his wife and two children, and had no intention to flee.
Nevertheless, to the surprise of John and his counsel the judge ordered that he should stay in
remand.
According to the judge John should remain in prison, because there was ample risk that he
would go out driving a car while being intoxicated with alcohol. The judge also justified the
prolonged detention by referring to the fact that John was a naturalized Boldanian, but
travelled many times to his parents in Pakistan where he would not be found to stand trial in
Boldania. Furthermore, the crime of which John was suspected was a serious one, and its
consequences Boldania was not represented anymore at the Eurovision competition truly
shocked the Boldanian public. Also, the judge said that the investigation in the case had not
been finished: namely, the expert report of Johns case had not been ready yet, and the
passenger in the pop stars car had not been questioned.
John was finally released from pre-trial detention after 15 days.

Case 3 (The hired killer)

In the European Member State Swinlandia Joan Summers was arrested under strong suspicion
of the murder on her husband. She allegedly had hired a killer for 25.000 Euro to do the job. It
was an awesome murder all according to her plan. The husband was blown to pieces by a
bomb that was placed on his boat when he was cruising Lake Lemont.
When his wife was arrested, the whole case got tremendous news coverage. She was depicted
as the cold killer-lady (while her late husband was kindly remembered as the warm lady-
killer).
Under the order of the Swinlandic investigating judge, Joan was taken in pre-trial detention,
that eventually lasted two and a half years before the trial finally began. The investigations
were hampered by difficulties in reaching witnesses most of whom left Swinlandia wishing to
avoid the excessive media attention. The fact that Joan persistently remained silent also
contributed to the delay: she had been interrogated 26 times by Swindlandic police, all to no
avail.
Joan invites her counsel to demand a review of the detention, asking for her release. Since
Joans counsel could not have access to the file with the incriminating evidence, he filed three
consecutive claims based on the absence of any dangers to public interests in Joans release.
The Swinlandic investigating judge rejected the claims by giving always the same following
reasons a) the accused was dangerous because she had committed a heinous crime; b) there
was a great probability of the accused absconding because she risked a very long prison term,
up to a maximum of 25 years; c) the police was still after the actual killer and that she might
try to obstruct that search if released from custody.
Joan and her late husband had 6 children, all still very young. After one year and a half of pre-
trial detention, the family of her husband requested the court to release her on her own
recognizance in order to take up the care of her youngest children. This request was denied by
the Swinlandic investigating judge on the above mentioned grounds.

READINGS
Read carefully Article 5 ECHR

25
Literature
Stefan Trechsel, Human Rights in Criminal Proceedings, OxfordUniversity Press 2005, pp.
423-431, 502-533 (reader)
ECtHR Case-Law
- ECtHR,OHara v. U.K., 16 October 2001 (Application no. 37555/97)
- ECtHR, Czarnecki v. Poland, 28 July 2005 (Application no. 775112/01)
-ECtHR, Tymoshenko v. Ukraine, 30 April 2013 (Application no. 49872/11) [only the part
related to Article 5, i.e. approximately 7-38 and 249-301]
-ECtHR, Mooren v. Germany, Grand Chamber, 9 July 2009 (Application no. 11364/03)
[particularly 108-125]

26
WEEK 5

LECTURE 5:
THE FAIR TRIAL
(Speaker, time and location to be announced on Eleum)

------o---o---o---o---o---o-----

TUTORIAL. SESSION 5
PROSECUTING DECISIONS AND RIGHT TO PREPARE THE DEFENCE

KEYWORDS
Indictment Public prosecutor
Principle of legality of prosecutions Principle of opportunity of
Discovery prosecutions
Plea bargaining Presumption of innocence
Investigating judge

INTRODUCTION
When pre-trial investigations have been carried out, the prosecutor or the investigative judge
decides on the fate of the case: Should it be referred to trial? Is there a need for further
investigations? Should the case be dropped (i.e. proceedings discontinued) for some reasons?
Not all countries follow the same approach. The traditional division is between countries that
follow the principle of opportunity of prosecution and countries that implement the principle
of legality. In the latter case, the decision to prosecute must be taken by looking at the
provisions of the criminal law only. All offences must be prosecuted as long as there is
evidence of it. It is not necessary that the inculpating evidence is overwhelming so to assure
that the prosecution will be able to win the case at trial. Criminal proceedings must move on
whenever there is enough evidence to argue the case at trial. Hence, prosecutors (and
investigating judges) should enjoy little or no discretion in taking the decision to prosecute
and they may decide to drop a case only when there is insufficient evidence of the crime and
for no other reasons.
On the contrary, the principle of opportunity of prosecution demands that the prosecuting
authorities take a discretionary decision on whether or not to bring the case to trial despite the
fact that there might be evidence to prove the case. The prosecuting authorities may believe
that the offence is petty and that it is not worth to put up an expensive trial to adjudicate on a
minor case, or that the offence falls outside of the priorities of national criminal enforcement.
They may also drop the case if they foresee a risk of losing the case at trial. In some countries

27
(mostly common law countries but also some continental law countries, e.g. the Netherlands,
Article 167 section 2 Dutch code, France, art. 40 of the code of criminal procedure)
prosecutors are vested with a lot of discretion to decide whether to prosecute a case or not:
they may, in theory, drop virtually any case. Of course, it does not work like that in practice:
prosecutors are bound by guidelines, interdepartmental instructions, unspoken rules, on how
to exercise their discretion to prosecute and sometimes even judicial review is allowed.
Thus, the traditional division must not be overemphasized. Just like the principle of
opportunity is mitigated by guidelines and forms of judicial review, the principle of legality
undergoes exceptions. Nowadays most of the countries that adopt the principle of legality
have mitigated it to some extent, e.g. by giving the prosecution some discretion to drop cases
for petty offences. If strictly intended, the principle of legality would in fact be too
burdensome for a criminal justice system because prosecuting all cases requires an excessive
amount of resources and manpower. As a matter of fact hidden forms of discretion have
always been exercised (and tolerated) in countries adhering to the principle of legality.

Linked to the power to prosecute the case is the prerogative of a prosecutor (or investigative
judge) to settle the case without going to trial. The most known form of such settlement is
plea bargaining where a prosecutor and defence agree on the charges or on the sentence, and
this agreement is endorsed by the judge. Plea bargaining is characteristic of common law
systems but forms of procedural bargain have been lately introduced in the majority of
European countries. Besides plea bargaining there are also other forms of early case disposal
that exist in continental law systems, where a prosecutor unilaterally (or with approval from
the judge) decides on the outcome of the case: be it the imposition of a criminal sanction, or
diversion from criminal prosecution (e.g. mediation), or else. The bargain can benefit both the
defendant, who usually receives a milder punishment, and the States, that saves money by
skipping the trial stage. Nonetheless, bargains in the criminal process are strongly criticized
by many legal scholars because they may jeopardize the principle of legality, the presumption
of innocence and other defensive rights. Furthermore, bargains also call into question the
proper role of the prosecutors and defence counsels in the criminal process.

If the prosecutor or investigative judge decides that the investigations are over, and no
decision to close the case at the pre-trial stage is taken, the case is referred to trial and a
formal indictment is drafted. The indictment contains the charges on which the defendant is
tried. The indictment must provide the defendant with a clear description of the allegations,
both as to the facts committed and as to the provisions of the criminal law violated.
Then the discovery procedure follows, when the defendant and his counsel have the chance to
examine the evidence that is collected by the prosecution. The amount and the nature of the
evidence disclosed vary depending on the national jurisdiction. In any case, the discovery
must be sufficient in order to ensure that the suspects right to adequate time and facilities for
the preparation of the defence is guaranteed. In this Session we will also look into the rules on
discovery from the standpoint of the rights of the defence.

Questions
- What is a decision to prosecute?
- When is a decision to prosecute taken? When is a case dropped?
- What is the difference between legality and opportunity in prosecutions? What are the
pros and cons of the two principles?
- What is plea bargaining? What is the relationship between plea-bargaining and the
presumption of innocence, the principle of legality, the principle of rehabilitation of
the offender?

28
 - What is the indictment? What does it mean that the indictment must describe the
charges in a specific manner?
- When and how should discovery take place in order to adequately guarantee defence
rights? Does the right to discovery apply only before the commencement of the trial
stage or during the investigative stage also?

CASES
Case 1 (A tragic surgery)
On a rainy night Luca Dentis is involved in a big car accident. He is immediately taken to the
local hospital, one of the medical excellence of the country. Upon arrival at the hospital Luca
is first visited by a young doctor, doctor Zhivago, whose diagnosis is that Luca suffered a
severe concussion. He believes that further neurological examination by means of X-ray or
MRI scan (Magnetic resonance imaging) is not needed and concludes that Luca needs to be
kept in observation at the hospital for 72 hours.
Two days later Luca loses conscience. The director of the hospital, doctor House,
immediately performs an MRI scan of the head. The examination reveals that Luca has a
major subdural haematoma (traumatic brain injury) that requires immediate surgery. The
craniotomy operation is performed under the supervision of doctor House by the doctor H.
Lecter and the doctor trainee F. Krueger. After the surgery Luca is taken back to his room
where he dies few hours later.
Lucas relatives file a complaint to the police. They allege that Lucas death was caused by
major negligence of the whole staff hospital and national healthcare system. First, they blame
the wrongful and inaccurate visit of Doctor Zhivago, which prevented from taking immediate
action against Lucas serious injury. They also lament that several surgical errors were made
during the craniotomy. Furthermore, they point their fingers at the instructions issued by the
by the Minister for Health and the National Director for Healthcare that allow trainee doctors
to have an active role in any surgical operations. The complaint invites the authorities to carry
out investigations against doctor Zhivago, doctor House, doctor Lecter and his assistant
Krueger, the National Director for Healthcare and the Minister for Health.
The findings of the investigations show that the relatives allegations are not unfounded. The
conduct of Doctor Zhivago caused the death because it delayed the needed surgery and
reduced significantly Lucas chance of life. The surgery itself was causal to the death in that it
followed an innovative procedure, which had never been tested before and turned out to be
wholly ineffective in the case. Furthermore, there are clear elements of inappropriate conduct
by the trainee doctor Krueger during the surgery.
The prosecutor discusses the matter with the medical experts hired for the enquiry. They warn
him that a trial would inevitably require a complicated battle of expert witnesses, particularly
on the surgery protocols that have been followed and on the wrongfulness of the rules issued.
There is evidence to argue the liability of all four doctors, but the prospect of convicting
House and Lecter is not very high. The case against the Minister and the National Director is
not unfounded, but once again the chances of winning and losing the case are the same.
Meanwhile the case has come to the attention of local newspapers, which side with Dr. House
and his hospital. They claim that medical art cannot always save lives and that an already
overloaded justice system should not go about wasting time and resources in a major trial with
the only result of undermining the public confidence in the healthcare system; and they urge
the Minister of justice to block thoughtless prosecutors.
The public prosecutor has to decide whether to take the case to court.
(What is s/he going to do? What changes if the legality or the opportunity principle applies?)

29
Case 2 (A new reform)
The Parliament of Nicklandia just passed a reform that introduced a form of plea bargain in its
procedural system. According to the new Nicklandian rules, before the commencement of the
trial the defendant can confess to a crime and reach an agreement with the prosecutor on a
penalty for the offence. The penalty agreed can be. The written agreement must be submitted
to the judge, whose role is to control that the charge is clearly described, the defendant
confessed and that the document is signed by both parties. When all three conditions are met,
the judge gives formal authorization to the agreement. Once authorized, the agreement is not
subject to change and cannot be appealed.

The new reform is already in force when Linda Brooks receives by mail a formal
communication that the local prosecution office has finished the investigations against her for
drug offences consisting in the possession and sale of narcotics. She allegedly sold 25 grams
of heroin to Mark Anderson.
A worried Linda voluntarily attends the police station in order to better understand the
situation. The prosecutor tells her that the available evidence is the testimony of Mark
Anderson, a drug addict who was caught in possession of heroin. Very honestly the
prosecutor tells Linda that Nicklandian courts are rather strict on drug offences and that she
could well be convicted to a prison sentence of four or five years. If instead she confesses, he
is ready to offer her a suspended prison sentence of six months. After all, he believes that drug
offences do not deserve harsh penalties.
Linda readily confesses and on that same day she signs a written agreement with the
prosecutor, which is endorsed by the judge two days later.

Case 3 (Neighbours from hell)

On 10 July 2011 Mr. Weert Gilders receives a summons notice to stand a criminal trial in
front of a magistrate court on the charge of verbal assault and racist remarks made on several
occasions against Mrs. Aisha Al-Adjani. A 50 year-old Mrs. Al-Adjani is the neighbour of
Mr. Gilders.
Mr. Gilders first decides to conduct his defence himself without the assistance of a counsel.
He files a request to the court registry to allow him access to the case file on 11 July.
On 13 July he receives a permission to study the case file, but for one hour only, and without
the possibility to take copies. Mr. Gilders manages to read the entire case file, but not being a
lawyer by education, he fails to take note of the important parts of the prosecution evidence.
After four days of reflection, Mr. Gilders decides that he is not qualified to conduct his own
defence, and hires a lawyer. He tells the lawyer that he was not able to understand what he
was charged with. The lawyer files a request to study a case file on 18 July (Friday) which is
granted on 21 July, the day before the trial. On 22 July Mr. Gilders is convicted of the charged
offence by the trial court.
His lawyer files an appeal. The appeal court grants him the possibility to further study the
case file. After thorough examination he discovers that pages 10-12 of the case file are
missing, and asks the court to inquire into the reasons for this omission.
It finally turns out that the prosecutor had excluded the first statement given during the
investigation by a witness, a neighbour of Mrs. Al-Adjani and Mr. Gilders, who had
suggested that Mrs. Al-Adjani could have been angry at Mr. Gilders because he had promised
to marry her and eventually had not kept the promise. The Prosecutor argues in Court that the
transcript of that witness statement had been excluded from the case file because it had been
proved that they were false. The witness had lied with the sole purpose of ridiculing Mr.
Gilders.

30
READINGS
Read carefully Article 6 ECHR
Literature
- Peter J.P. Tak, Introduction, in Peter J.P. Tak (Ed.), Tasks and Powers of the Prosecution
Services in the EU Member States, Volume I, Wolf Legal Publishers, Nijmegen 2004, pp. 1-
13 (reader);
- Stefan Trechsel, Human Rights in Criminal Proceedings, Oxford University Press 2005, pp.
222-236 (reader)
ECtHR Case-Law
- ECtHR, Mattoccia v. Italy, 25 July 2000 (Application no. 23969/94)
- ECtHR, Natsvilishvili e Togonidze v. Georgia, 29 April 2014 (Application no. 9043/05)
- ECtHR, Edwards v. United Kingdom, 16 December 1992, (Application no. 13071/87)
- ECtHR, Foucher v. France, 18 March 1997 (Application no. 22209/93)
Further optional readings
- ECtHR, calan v. Turkey, 12 May 2005 (Application no. 46221/99) [ 138-149]

31
WEEK 6

LECTURE 6:
FILM VIEWING

------o---o---o---o---o---o-----

TUTORIAL. Session 6
THE TRIAL

KEYWORDS
Bench trial/trial by professional judge(s) Jury trials
Impartiality Independence
Jury verdict Right to call/present evidence
Right to cross-examine witnesses Judicial activism
Hearsay evidence Exclusion of evidence
Anonymous witnesses Burden of proof
Expert witnesses

INTRODUCTION
When a formal decision to prosecute is taken the case moves on to trial. Although most
criminal cases will not reach this last stage (and are being disposed of earlier through out-of-
court settlements like plea-bargaining or transaction see previous session), the trial is the
final step in which a definite decision is reached on the questions whether or not the defendant
is guilty (of having committed the crime as charged), whether or not he can be held
accountable and whether or not he should be punished. At trial all the available evidence is
assessed on its probative and convincing value.
Trials are organized and conducted differently throughout Europe and even within each
national system. The fact-finder can either be a judge (or a panel of judges) or a jury. A jury is
composed by lay people (usually twelve) who deliver a verdict. The trial judge can also be a
panel of professional judges. In minor cases, it is also possible that the case is adjudicated by
a single professional judge, or even by a single lay judge. There are also hybrid panels, where
lay people join professional judges.
Jury trials present a peculiar structure. The lay people who sit on the bench are totally
unaware of the law. Hence the direction of the trial is given to a professional judge whose task
is to supervise the parties activities. At the end of the trial, the professional judge gives
instructions to the jury on the legal issues that are to be decided (e.g. clarifies what the law is,
identifies the different questions to be answered, etc.). The jury gives a verdict that, in the

32
majority of countries, carries no reason for it. It is simply a yes/no answer to the points at
stake.
The choice between these options varies from country to country and depends on the tradition
of each country combined with several other factors. No matter what the characteristic of the
judge is, the trial judge must be independent, impartial, established by law and competent.
In front of the trial judge the parties (public prosecutor, defence) argue their case trying to
convince the judge of their position.
In some countries it is required that the defendant be present at trial. In other jurisdictions
instead trials can take place in absentia, i.e. in the absence of a defendant. The latter situation
can pose a problem to the full exercise of the defence rights. It may be justified when the
defendant is at large and he decides not to show up at the trial albeit having been properly
informed. The lurking risk of trials in absentia is that the defendant may have not been
properly informed of the trial, hence the absence may be due to unawareness of the trial more
than to a conscious decision not to participate at the trial.
Trial revolves around a basic question: are the statements contained in the indictment, which
list the charges against the accused, true or false? If they are deemed to be true the defendant
is found guilty, if they are false the defendant is acquitted.
The most significant part of the trial concerns evidence. The parties try to persuade the judge
by relying on the evidence collected. Then they argue their case in the light of the evidence
collected. It is on the evidence that the case is decided by the courts.
The burden of proof lies with the prosecutor. It is a corollary of the presumption of innocence.
It is he who accuses that must prove beyond reasonable doubt the defendants guilt. A lack of
evidence plays always in favor the defendant who consequently has to be acquitted.
Evidence can be of different kind. The most important is the testimonial deposition of
witnesses. With the growing impact of science in fact finding, expert witnesses evidence is
often crucial. Objects and documents can also be used in evidence, albeit with some caution
especially in those countries where a stricter ban to hearsay evidence applies.
One important distinction is between real (or physical) evidence and oral evidence. The first
category of evidence is, according to a traditional definition, that of which any object
belonging to the class of things is the source (Bentham). It includes documents, objects, etc.
Oral evidence is instead evidence given by witnesses or suspects and it consist of statements.
Another relevant distinction is the one between direct evidence and circumstantial evidence.
The former is evidence which proves directly the facts of the case (e.g. eyewitness testimony),
while the latter is evidence of other facts from which an inference can be made concerning the
facts of the case (e.g. when the footprint of a shoe is found on the crime scene). The first and
second distinction do not coincide. Sometimes a witness (i.e. an oral source of evidence) can
offer only circumstantial information: like, for instance, if he narrates that he saw the
defendant carry a knife in the vicinity of the place where the victim was stabbed three hours
later. Whether oral or physical, direct of circumstantial, each piece of evidence must be
carefully assessed in its probative value. It is not possible to predetermine the value of a piece
of evidence by the fact that it belongs to one category or the other. For instance, normally,
direct evidence is more useful than circumstantial evidence but not necessarily more reliable:
the recount of an eye-witness can be false or incorrect, while the trace of a shoe of the
defendant on the crime scene might lead to a more reliable inference over what happened.
An important profile concern the parties right to present evidence at trial. In the traditional
adversarial setting, the parties have a right to introduce any piece of evidence that is relevant.
The judge should not impede the parties to adduce the evidence that they deem relevant in
order to prove their case. Hence the judge should in principle admit all the evidence that is
requested by the parties as long as it concerns the facts at issue. In adversarial systems the
broad right of the parties to introduce evidence corresponds to the absence of judicial

33
activism. The judge is not entitled to call evidence motu proprio. He is more of a passive
umpire who should not get involved in the fact finding process. He should be a spectator of
the parties effort to convincingly reconstruct the facts of the case without interfering with it.
In continental system the traditional approach was that the trial-judge is the trier of the fact
and that it is upon him to find the truth. Hence continental systems provided for strong
judicial activism (i.e. the judge could largely admit evidence motu proprio), while the parties
were left with the possibility to adduce of evidence but only insofar as the judge deemed it
essential to prove the case.
Nowadays most of these differences have been mitigated. Most continental systems grants the
parties (and the defence in particular) a larger right to introduce their own evidence.
Nevertheless judicial activism remains a distinctive feature of continental systems. In Anglo-
American trials, although trial judges have been given some powers to introduce evidence
motu proprio, they tend not to make use of such prerogative.

Once admitted (whether on the parties request or on the judges impulse) evidence must be
collected. A crucial role is played by testimonial evidence delivered by witnesses. Their
testimony is usually determinative in either convicting or acquitting the defendant. Witnesses
make incriminating or exculpatory statements from what they personally have seen or heard
(or otherwise perceived). From the discipline of legal psychology we know that identification,
observation and sensation by witnesses is not always infallible, not even to mention the
(intentional) giving of false testimony.
According to a settled tradition, in Anglo-american adversarial trials witnesses are questioned
directly by the parties (the prosecutor and the defence counsel). The party who introduced the
witness is the first to start posing questions (examination in chief), then the opposing party
goes on trying to test the veracity of the witness (cross-examination). The traditional feature
of continental systems was instead that witnesses were questioned by the judge. Some
continental systems still stick to this traditional model (e.g. the Netherlands), albeit giving the
parties some possibilities to pose questions autonomously. Others have more radically moved
toward an adversarial approach by permitting the parties to conduct direct examination and
cross-examination of witnesses (e.g. Italy).

Most European systems provide for a principle of immediacy (or orality) of evidence
presentation in that they require that evidence be heard at trial in front of the judge (e.g. in
France, Article 452 CPP). Hence in principle the evidence must be collected in court.
Witnesses ought to be heard in court. However, this does not entail that hearsay evidence (i.e.,
evidence that was not collected in front of the judge such as statements collected during the
investigations or documents) is banned and that previous statements made by the witness can
never be used in evidence. Previous inconsistent statements can be very useful to test the
veracity of the witness. Furthermore, the majority of European systems allows the parties to
adduce in evidence the pre-trial statements (or out-of-court) statements of the witnesses as
evidence of the facts asserted therein. Nonetheless, some differences remain. While some
systems allow a generalized admission of investigative evidence at trial (e.g. France and the
Netherlands), others permit the use of previous statements only under specific conditions (e.g.
U.K. and Italy).

In this session we will concentrate on some of the main features of the trial stage. We will
look at them in the general framework provided for by Article 6 ECHR (take some time to
read it carefully again).

34
Questions:
What are the different ways to organize a trial?
What are the features of a fair trial according to Article 6 ECtHR?
What are the differences between jury trials and trials adjudicated by professional
judges?
What are the rights of the defence during the trial?
What are the different types of witnesses, and what is the scope of defense rights to
examine/question them?
What are the possibilities for defendants to confront anonymous witnesses and
challenge their credibility?
What is the scope of the defence rights to call and to (cross-)examine witnesses?
Are there mitigations or exceptions to the principle of confrontation?
What is the difference between the principle of confrontation and the hearsay rule?

CASES
Case 1 (High sentence)
Mr. John High stands trial for large scale drug trafficking.
At trial the prosecutor introduces the investigative statements of two small dealers, Mr. Paul
Addict and Mr. Frank Quick. During the investigations both men had declared to the police
that John High was their supplier and that in February 2012 he had informed them that he had
just received 50 kilos of cocaine. The prosecutor also introduces in evidence a return ticket to
Colombia in the name of John High dating 3 January 2012 and 120,000 euros seized in John's
house.
John counsel's asks to hear the two witnesses. The prosecutor replies that Mr. Addict is
deceased in prison in March 2012 for an overdose of cocaine. As to Mr. Quick, who was
released from prison in April 2012, his absence is due to the fear for his personal integrity.
The prosecutor produces two letters recently sent to Mr. Quick where he is threatened with
death if he testifies at trial against John High.
John's counsel requests to introduce in evidence the deposition of two witnesses: 1. a prison
ward who could testify that Addict and Quick in prison repeatedly boasted about how often
they lied to the police in their criminal career; 2. John's brother, who could testify that John
was sick in the first week of January and never left their apartment. John's counsel also asked
to introduce in evidence a family certificate proving that John had a cousin in Colombia.
The judge admits all the requested evidence. After having heard the testimonies and the
parties' arguments the trial judge instructs the jury. In giving directions to the jury the trial
judge says: You have to decide whether the accused is guilty or not. Keep in mind that you
can convict only if you do not have any reasonable doubt on the defendants liability. The
jury convicts John to twelve years imprisonment.

Case 2 (A fearful witness)

In early August 2008, the exact date is not known, an informant whose identity was never
disclosed stated to a police officer in Amsterdam that a man named Gabana was using a house
located at Newtonstraat No. 40 in Amsterdam to store firearms. A consignment of weapons
had recently been delivered there by a four-wheel-drive off-road vehicle in which Gabana had
been a passenger and another person the driver.

35
The Newtonstraat house was inhabited by one Belinfante a close friend of Gabana from
childhood; Gabana had at one time lived there too. At another period of his life he had lived in
the house next door and his mother still lived there.
On 7 August 2008 the police raided the Newtonstraat house. According to the official report
of the event later drawn up, they found ninety-three kilograms of cocaine, three sub-machine
guns, a gun silencer, two bayonets, ten live hand grenades, fifty-six kilograms of Iremite high
explosive, eight bolt-action rifles, nine automatic pistols, two revolvers, seven sawn-off
shotguns and nearly twenty-seven thousand rounds of live ammunition.
Gabana was arrested on 10 August 2008 in an Amsterdam coffee shop and charged with
possession of the arms, ammunition and high explosive found in the Newtonstraat house.
During the preliminary investigations Gabana denied the charges. Belinfante was also arrested
and remained silent during police interrogation. Gabana stated that he had been in Spain at the
end of July 2008, and had returned to the Netherlands by 4 August 2008 (he had proof of that
because he could show the flight tickets and photographs of a wedding of a friend where he
had been present in Spain) so he stated he had an alibi. He requested the interrogation of the
anonymous witness.
The interrogation of the anonymous witness took place the following week. The witness
whose identity was not disclosed because he feared reprisals, was present in the room of the
Investigating Judge[s]. The Public Prosecutor and Gabana's counsel, were in another room.
Between the rooms there was a sound link with a voice distortion device. The witness's
answers were first heard by the Investigating Judge with the sound link switched off, then, if
the Investigating Judge found that the answer did not jeopardise the witness's safety, repeated
through the sound link so that the persons in the other room could hear. During the
interrogation the Investigating Judge blocked a question relating to the day of the week on
which the weapons were delivered.
Before being committed to trial Gabana is released from detention due to the expiry of the
maximum time limits for pre-trial detention during the investigations.
The trial hearing before the Amsterdam Regional Court is held in the absence of Gabana. The
prosecutor explains that Gabana is nowhere to be found and the authority could not properly
summon him for trial despite having conducted thorough searches. The prosecutor observes
that Gabana can be adequately represented by his private counsel who is instead present in
court. The Court fully accepts the Prosecutors submission and the trial continues.
At trial Gabanas counsel argues that the evidence presented by the anonymous witness has to
be excluded because the need for keeping the identity of the witness concealed was never
established, no facts or circumstances having become known from which it would appear that
the anonymous witness had reason to fear reprisals. Nor had the defence had adequate
opportunity to question the witness. Furthermore, questions put by the defence had been
blocked without any apparent need in the interest of keeping the witness's identity concealed.
These included, in particular, questions about the date on which the weapons had allegedly
been delivered, by the blocking of which Gabana had been prevented from establishing an
alibi.
Gabana is convicted to twenty years imprisonment on the basis of the deposition of the
anonymous witness. Two years later Gabana is arrested and sent to jail. He files an appeal
against the conviction but the Court of Appeal rejects on the ground of its late submission.

Case 3 (Friends will be friends?)

David Bateman, a University student, stands trial for the charge of aggravated murder. He is
accused of having killed his roommate Goran Stanic stabbing him with a kitchen knife.
At trial the prosecutor presents in evidence the knife used for the homicide and calls to testify
the expert witness who drew the scientific report on the fingerprints found on the knife.

36
During the cross examination of the defence, the Prosecutors expert admits that the knife had
not been properly sealed before the scientific examination but that the knife unequivocally
contained only the fingerprints of the defendant.
The prosecutor calls the neighbour to give testimony. The neighbour says that on the night of
the day of the murder he heard a man enter the room. He believes it was David because the
voice was familiar and the man entered with his own keys. Few minutes later, he then heard
loud noises and screams. He rushed to the apartment next door. The door was unlocked.
When he entered the apartment he saw Goran lying on the floor. Nobody else was there.
David is heard in court with all due safeguards. He denies having killed his roommate and
contends that he was at the cinema when Goran was killed. He requests in evidence the
deposition of one of his friends, Al Ford, who could testify that they went to the cinema
together the night of the killing. He further requests the deposition of Gorans girlfriend who
could testify that they had a good relationship. He further requests an expert analysis of the
knife in order to find out if the improper sealing could have affected the outcome of the
fingerprints analysis.
The Court rejects all the requests of the defence in the light of the overwhelming
incriminating evidence. David is convicted to life imprisonment.

READINGS
Read carefully Article 6 ECHR
Literature:
- John R. Spencer, Hearsay Evidence in Criminal proceedings, Hart Publishing, Portland,
Oregon, 2008, ISBN: 978-1-84113-812-1, p. 39-51 (reader)
- Bas de Wilde, A Fundamental Review of the ECHR right to examine witnesses in criminal
cases, The International Journal of Evidence and Proof, 2013, pp. 157-182 (reader)
- J.R. Spencer, Strasbourg and Defendants Rights in Criminal Procedure, The Cambridge
Law Journal, Volume 70, Issue 01, March 2011, pp 14 17 (reader)
ECtHR Case-Law:
ECtHR, Al-Khawaja and Tahery v. United Kingdom, 15 December 2011 (Applications nos.
26766/05 and 22228/06)
ECtHR, Taxquet v. Belgium, Grand Chamber, 16 November 2010 (Application 926/2005)
ECtHR, Sejdovic v. Italy, 1 March 2006 (Application no. 56581/00)
ECtHR, Topi v. Croatia, 10 October 2013 (Application no. 51355/10)

37
WEEK 7

LECTURE 7:
CONCEPTS OF CRIMINAL PROCEDURE IN A NUTSHELL
Michele Panzavolta
(time and location to be announced on Eleum)

------o---o---o---o---o---o-----

TUTORIAL. SESSION 7
ILLEGALLY OBTAINED EVIDENCE.

KEY TERMS:
Illegally obtained evidence Hearsay evidence
Exclusion of evidence Procedural nullity

INTRODUCTION

One topic that remains to be studied is the means through which tainted, i.e. unreliable or
illegally obtained evidence, may be excluded from the case file and/or from the trial. In
several jurisdictions this is done by means of the so-called exclusionary rule, prescribing that
unlawfully obtained evidence (in violation of fundamental rights and principles of criminal
law enforcement) shall not be used as evidence. The scope and the manner of application of
the exclusionary rule, however, vary in each jurisdiction. In some countries the exclusion of
evidence is left to the discretion of the court, in others it is prescribed directly by the law
(sometimes even by the Constitution). Thus, the degree of protection against the use of results
of illegal actions of law enforcement authorities to convict individuals, also varies. There are
however some countries where the exclusion of illegally obtained evidence does not apply or
at least does not represent a general rule.
Furthermore, the rationale of the exclusion of illegally obtained evidence remains highly
disputed and it is not always endorsed by empirical studies. Is it always reasonable to deprive
the courts of illegal evidence? Even when the evidence appears to be reliable? Who and what
is exactly to be protected through the exclusion of illegally obtained evidence? Are there
other, more effective, ways to deter the police from committing illegal actions? Are there
better ways to protect the rights of citizens from the abuses of law enforcement authorities?

The following questions will be addressed:

- When is evidence obtained illegally?

38
 - Should illegally obtained evidence be excluded from trial? In any case?
- What is the reason for excluding illegally obtained evidence?

CASES

Case 1 (Dont keep your mouth shut)

Officer Callaghan is investigating on a cocaine traffic. One night two suspects suspect meet in
the park. Callaghan is watching from a distance but due to the darkness he cannot see what is
going on. He tries to get closer but he makes too much noise and is noticed by the two men.
One of the two men immediately runs away, the other places something in his mouth.
Callaghan rushes close to the latter and hits him with a punch in the face. The suspect starts
bleeding and spits a bubble (a tiny plastic bag containing a small amount of cocaine).
At trial the bubble is introduced by the Prosecutor as evidence of the offence (smuggling
cocaine).

Case 2 (A second bomb?)

A bomb exploded last June next to the building of the Ministry of the Interior. The
responsibility of the attack is claimed via internet by an unknown group named AAA,
protesting against the recent tightening of immigration policies by the Government. Officer
OHara, a high rank policeman with decades of experience in the fight against terrorism,
points the investigative target on anarchist groups, in particular on a cultural association (No
name), known for flanking anarchist ideals. He believes that the attackers are to be found
among the members of that association. He orders some of his men to follow the movements
of the five leaders of the association and collect information on them. They find out that the
targeted individuals have participated in manifestations against the government immigration
policies and that they all have been convicted in the past for crimes related to political
activity. Moreover, all the five men act very suspiciously and none of them slept at home the
night before the explosion.
OHara believes to be on the right track but he knows he is still in want of evidence. He then
tells his men to intensify the surveillance. Follow them everywhere! We need to get evidence
to build a probable cause and obtain five search warrants from the judge!.
On 13th of July a journalist declares that he has known through one of his sources that a new
bomb attack will take place the following day, on liberation day. OHara fears that his
investigative action might just come too late. He believes he can no longer wait, hence he
orders his men to break in the house of the five targeted anarchist leaders without a warrant.
In the cellar of one of the five houses the police find an arsenal of weapons, a bomb of exactly
the same type of the one that exploded in June, a handwritten paper with the same text of the
claim that appeared on the internet the day after the explosion.
The five leaders are arrested and brought to trial. The Court has to decide on the admissibility
of the evidence collected in the cellar of one of the defendant.

Case 3
Read again the cases of session 3. Should the evidence collected be excluded from trial?

39
READINGS
Literature:
- Guido Calabresi, The Exclusionary Rule, Harvard Journal of Law and Public Policy, 2003,
p. 111-118 (ISBN 0 193 4872) (reader).
- John R. Spencer, The concept of European evidence, ERA Forum, Vol. 4, Number 2, 29-
38 (reader).
ECtHR Case-Law:
- ECtHR, Jalloh v. Germany, 11 July 2006 (Application no. 54810/00)
- ECtHR, Bykov v. Russia, Application no. 4378/02, 10 March 2009
Case law from previous sessions:
- ECtHR, Gfgen v. Germany, 1 June 2010, (Application no. 22978/05)
- ECtHR, Salduz v. Turkey, 27 November 2008 (Application no.3639/02)

40