The court should make a statement about DNA. The operative principle of subsidiarity whereby member states are essentially responsible themselves for guaranteeing and respecting human rights, is all very well. But as numerous learned contributors here and elsewhere have demonstrated, good science knows no borders but neither does bad science either. There would appear to be a very clear requirement for guidance from the court, with a built in process for "updateability" and a direct link to Article 6 violation findings for transgressions.
There's this:
Horvatic v. Croatia (17 October 2013)
Holding: Defendant must be allowed investigation to challenge the authenticity of forensics evidence.
A bank was robbed by a man wearing certain clothes. The police located the bank-robber clothes in the basement of a house. Horvatic was arrested, and his shirt, trousers, and hair and nail samples were seized from him. Upon forensic investigation, fibers from the bank-robber clothes were located on Horvatic’s shirt and trousers. Conversely, hair and fibers from Horvatic’s shirt and trousers were located on the bank-robber clothes.
Horvatic argued that the forensic findings were the consequence of contamination or tampering. The file documents as to collection, packing and handling of the samples were incomplete, and consequently, Horvatic sought the testimony of the involved police and forensics experts to establish contamination or tampering. The trial court dismissed these requests, overruled Horvatic’s contamination/tampering argument, and convicted Horvatic.
Horvatic appealed to the ECtHR, arguing that there was a violation of his right to a fair trial under Article 6. Initially, the ECtHR noted that it was sufficient that Horvatic had raised these arguments during the trial, and it was not necessary for him to have raised these arguments via a separate disciplinary or other complaint procedure.
The ECtHR explained that under Article 6 the Court will examine the way in which evidence is taken, and in particular “whether the applicant was given the opportunity to challenge the authenticity of the evidence and to oppose its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy.”
The ECtHR confirmed that Horvatic’s request for examination of the police and forensics experts was proper because (i) not vexatious, and (ii) “there is no doubt that it was sufficiently reasoned, relevant to the subject matter of the accusation.” Moreover, examination of the police and forensics experts “could arguably have strengthened position of the defence or even led to . . . acquittal had it been confirmed that there had been an intentional or unintended transmission and contamination of traces.”
The ECtHR held that “by dismissing all requests by the defense and accepting all the prosecution arguments and evidence, the trial court deprived the applicant of any practical opportunity to effectively challenge the authenticity of the evidence or to oppose its use.” Accordingly, it was a violation of Horvatic’s right to a fair trial for the trial court to fail to take action to examine Horvatic’s arguments concerning the collection of the evidence.
There's another good one somewhere about access to original tape recordings. Will have to hunt around for it.
