Numbers, wouldn't the 'multiple attackers' brought in from Guede's fast-track trial be a concern to the ECHR?
sept,
Here's a longer snippet from my post on IIP, dealing with what ECHR terms failure to provide facilities for defense and equality of arms, but in the US is termed discovery. Same reference source as before, but I did some HUDOC look-up on this one.
7 Violation of Article 6.3b – Right to Adequate Facilities for Defense; Second Instance; with Violation of Article 6.1 – Right to Equality of Arms
7.1 The Facts: In each of the trial phases, despite requests from the defense, a large number of items of evidence, including forensic evidence, in the possession of the police were never admitted into the court and not disclosed to the defense. These items include, but are not limited to:
7.1.1 Electronic data files from the DNA profiling (requested by Hellmann court, but not delivered to court or defense)
7.1.2 Full results of DNA negative and positve control samples
7.1.3 Full results of the rape kit DNA profiling, including any presence of sperm or any indication of anal rape
7.1.4 Full explanation of the methodology used to conduct the DNA sampling, quantification, and profiling
7.1.5 Full disclosure of all samples of DNA tested; there was a suppression of data revealed by anomalies in the number of samples
7.1.6 Full disclosure of the DNA results of the human blood stains in the downstairs flat
7.1.7 Testing of a putative semen stain to identify it and to conduct DNA profiling
7.2 The Law: The “facilities” which everyone charged with a criminal offence should enjoy include the opportunity to acquaint himself, for the purposes of preparing his defence, with the results of investigations carried out throughout the proceedings. Failure to disclose to the defence material evidence containing items that could enable the accused to exonerate himself or have his sentence reduced may constitute a refusal of the facilities necessary for the preparation of the defence, and therefore a violation of the right guaranteed in Article 6 § 3(b) of the Convention. The accused may, however, be expected to give specific reasons for his request and the domestic courts are entitled to examine the validity of these reasons.
7.2.1 It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition, Article 6 § 1 requires that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused.
7.2.2 Having regard to the fact that, in spite of repeated requests, essential pieces of evidence were not adequately adduced and discussed at the trial in the defendant’s presence, the proceedings ... taken as a whole, did not satisfy the requirements of a fair trial. *
7.2.3 It [was not reasonably] explained why the defendants' requests to have the [evidence] produced before the court were refused. While it is true that the right to disclosure of relevant evidence is not absolute, the Court must scrutinise the decision-making procedure to ensure that, as far as possible, the procedure complied with the requirements to provide adversarial proceedings, equality of arms and incorporated adequate safeguards to protect the interest of the accused.*
7.2.4 The defendant was neither informed of the reasons for non-disclosure nor of the nature of the undisclosed materials nor, indeed, of whether the [suppressed evidence] did include any undisclosed material evidence. The Court considers that the procedure followed by the judicial authorities in the present case failed to adequately counterbalance the difficulties caused to the defence by its restricted access to the [suppressed evidence]. The defence were not informed in an adequate manner of the [domestic court’s] position on why it had been strictly necessary to restrict their rights and they had no possibility of presenting their counterarguments to any such considerations. The Court observes that the [domestic court] initially did authorise the applicant’s access to the [suppressed evidence] – implying that it found no reasons to restrict such access and considered it to be of some importance for the defence – but failed to take adequate measures to ensure compliance by the investigating authorities with its orders. Nor was this issue of non-compliance subsequently addressed in the judgements of the domestic courts. In these circumstances, the Court does not consider that the procedure employed to determine the issue of disclosure of evidence complied with the requirements to provide adversarial proceedings and equality of arms or incorporated adequate safeguards to protect the interests of the accused. It follows that there has been a violation of Article 6 of the Convention in this respect.*
7.2.5 Non-disclosure of evidence to the defence may breach equality of arms (as well as the right to an adversarial hearing).
7.3 Cases: Natunen v. Finland 21022/04 § 43; Georgios Papageorgiou v. Greece 59506/00 (as 6.3d) § 36-39; Laska & Lika v. Albania 12315/04 § 70; Leas v. Estonia 59577/08 § 76-89; Kuopila v. Finland 27752/95 § 38
* Original text paraphrased for clarity; words in [ ] added.