The Principle of Immediacy Versus the Efficiency of Criminal Proceedings: Do Changes in the Composition of the Trial Panel Violate the Right to a Fair Trial?

ABSTRACT

The author discusses the issue of changes in the composition of the trial panel as an element of the principle of immediacy, and the consequences that such changes have on a fair trial. Special consideration is given to the question of the relationship between the principle of immediacy and the efficiency of criminal proceedings, as one of the postulates of modern legislation. That is, on the one hand the defendant has the right to a fair trial, and, among other things, the right to hear a witness directly before the court of unchanging composition. On the other hand, the principle of immediacy suffers exceptions both when it comes to hearing witnesses before the court and when it comes to changes in the composition of the trial panel. The European Court of Human Rights has repeatedly dealt with the question of a change in the composition of the panel, but the question of whether the path it is taking is safe and well-founded remains open.

KEYWORDS:

• Trial panel
• principle of immediacy
• fair trial
• ECtHR jurisprudence

Acknowledgements

I am very grateful to the anonymous referees and the journal editor for their insightful and helpful suggestions.

Notes

1 M Davies, H Croall and J Tyrer, Criminal Justice: An Introduction to the Criminal Justice Systems in England and Wales (Pearson Longman 2005) 275.

2 There are numerous types of criminal procedure, which can usually be categorized into two or three main models. See more in M Jimeno-Bulnes, ‘American Criminal Procedure in a European Context’ (2013) 21(2) Cardozo Journal of International and Comparative Law 409.

3 See MS Brodin, ‘The British Experience with Hearsay Reform: A Cautionary Tale’ (2016) 84(4) Fordham Law Review 1417.

4 L Stanila, ‘Specific Aspects on the Right to a Fair Trial in the Recent Case Law against Romania’ (2019) (1) Journal of Eastern-European Criminal Law 166. Article 6 of the ECRH includes multiple component rights, explicitly listed in the Convention text or developed through the ECtHR jurisprudence: R Goss, Criminal Fair Trial Rights: Article 6 of the European Convention on Human Rights (Hart Publishing 2016) 1. On origin of the term fair trial see I Langford, ‘Fair Trial: The History of the Idea’ (2009) 8(1) Journal of Human Rights 37.

5 J Mazzone, ‘The Rise and Fall of Human Rights: A Sceptical Account of Multilevel Governance’ (2014) 3(3) Cambridge Journal of International and Comparative Law 938.

6 M Redmayne, ‘Hearsay and Human Rights: Al-Khawaja in the Grand Chamber’ (2012) 75(5) Modern Law Review 866.

7 C MacQueen, ‘Special Measures and the Principle of Orality in the Scots Criminal Trial: Ensuring Fairness to the Accused’ (2017) 3(2) Edinburgh Student Law Review 10. Today we can hear conversations about the fair trial almost everywhere, yet there is no single comprehensive definition of the term in the field of law: see S Gless, ‘Transnational Cooperation in Criminal Matters and the Guarantee of a Fair Trial: Approaches to a General Principle’ (2013) 9(4) Utrecht Law Review 91. Furthermore, Article 6 enumerates the requirements of a fair trial but does not stipulate any specific process for their achievement: see M Coen, ‘With Cat-like Tread: Jury Trial and the European Court of Human Rights’ (2014) 14(1) Human Rights Law Review 107. In the last decade, a major protection for the accused was delivered with the ECtHR judgment in a case Al-Khawaja and Tahery v the United Kingdom. In this judgment, the court considered at length whether a defendant may be properly convicted if hearsay evidence is the ‘sole and decisive’ evidence against him: see RP Barnes, ‘Introductory Note to the European Court of Human Rights: Al-Khawaja & Tahery v United Kingdom’ (2012) 51(3) International Legal Materials 477; A Greene, ‘Through the Looking Glass: Irish and UK Approaches to Strasbourg Jurisprudence’ (2016) 55 Irish Jurist 119; R Glover and P Murphy, Murphy on Evidence (Oxford University Press 2013) 241. It is just one of the judgments that represent a dialogue between UK and ECtHR. See more in M Amos, ‘The Dialogue between United Kingdom Courts and the European Court of Human Rights’ (2012) 61(3) International and Comparative Law Quarterly 557. Prior to this judgment, the so-called sole and decisive rule was considered a safeguard for the accused, making a conviction impossible in cases where an uncontested statement was the sole or the decisive piece of evidence for a conviction: E Widder, ‘The Right to Challenge Witnesses: An Application of Strasbourg’s Flexible ‘Sole and Decisive Rule to Other Human Rights’ (2014) 3(4) Cambridge Journal of International and Comparative Law 1085. Simply, in a case where the defence could not examine a witness whose statement was the sole or decisive evidence of the charges, there exists a violation of Article 6. After this judgment, sole or decisive rule exists as one of the steps in the so-called Al-Khawaja and Tahery test.

8 M Dika, ‘On the Principle of Immediacy in the Legal Action de lege lata with Some Projections de lege Ferenda’ (2008) 58(4) Zbornik Pravnog Fakulteta u Zagrebu 899.

9 S Trechsel, Human Rights in Criminal Proceedings (Oxford University Press 2005) 129.

10 M Mrčela, ‘Adversarial Principle, the Equality of Arms and Confrontational Right: European Court of Human Rights Recent Jurisprudence’ (2017) 16 EU and Comparative Law Issues and Challenges Series 1, 16; E Ivičević Karas, ‘Probative Force of Investigation Results according to the Proposal of the New Criminal Procedure Act’ (2013) 20(2) Croatian Annual of Criminal Law and Practice 692.

11 E Kern and C Roxin, Strafverfahrensrecht (Verlag CH Beck 1976) 67.

12 R Vegvari, ‘Shifts in Thinking Concerning Law of Criminal Procedure in Witness Protection’ (2007) 48(4) Acta Juridica Hungarica 367. In some countries, this principle is applicable for the disciplinary authorities: M Chiavario, ‘Principles of Criminal Procedure and their Application to Disciplinary Proceedings’ (2003) 74(3) Revue internationale de droit penal 742.

13 E Ćorović and A Šemović, ‘The Use of Video Link in the Criminal Proceedings’ in S Bejatović (ed), Trial within Reasonable Time (Serbian Association for Criminal Legal Theory and Practice 2015) 357.

14 T Bubalović and N Pivić, Criminal Procedure Law: General Part (University of Zenica Press 2016) 62.

15 D Krapac, Criminal Procedure Law: The Institutions (Narodne novine 2015) 90.

16 A Chmiel, ‘Immediacy Principle in the Roman Criminal Procedure’ (2016) 8(2) Krytyka Prawa 4.

17 JF Nijboer, De waarde van het bewijs (Deventer 1999) 108.

18 M Škulić, Criminal Procedure Law (University of Belgrade, Belgrade 2016) 66.

19 D Radulović, Criminal Procedure Law (University of Podgorica Press 2009) 70.

20 A Kraut, T Hesz and L Kohalmi, ‘Witness Protection from the Aspect of Defence Attorney’ (2019) 2019(2) Journal of Eastern-European Criminal Law 214.

21 Mellors v the United Kingdom, 57836/00, 30 January 2003 and Cutean v Romania, 53150/12, 2 December 2014, § 61.

22 Trechsel (n 9) 224. He further states that one of the main arguments advanced against strictly respecting the immediacy principle is that it makes the administration of criminal justice exceedingly onerous and results in costly and lengthy trials: Trechsel (n 9) 305.

23 NV Demleitner, ‘Witness Protection in Criminal Cases: Anonymity, Disguise or Other Options’ (1998) 46 American Journal of Comparative Law Supplement 646.

24 O Johan Settem, Applications of the ‘Fair Hearing’ Norm in ECHR Article 6(1) to Civil Proceedings (Springer 2016) 316.

25 M Škulić, Criminal Procedure Code: A Commentary (Official Gazette 2007) 1121.

26 On efficiency and effectiveness as elements of the rationality of criminal proceedings, see S Brkić, Rationalization of Criminal Procedure and Simplified Procedural Forms (University of Novi Sad Press 2004). Brkić (ibid. 31–57) believes that rational criminal proceedings have five components: efficiency, effectiveness, legitimacy, economy, and complexity. Efficiency means criminal proceedings are always conducted when the law stipulates they must be, and the relevant legal provisions are applied during them, or sanctions imposed otherwise. Effectiveness is reflected in the degree of achievement of the goals set by law. There is theoretical confusion in the use of the terms efficiency and effectiveness, and their contents are often replaced. Efficiency and effectiveness should be correlated with each other, in such a way that all actions in criminal proceedings should be performed in accordance with the law to obtain the maximum legal result from every and each action. Some legislations (such as the Republic of Serbia) are characterized by a high ‘dark’ number of criminal offences, due to non-reporting and selective prosecution. This is inefficient. To establish whether criminal proceedings are effective, it is necessary to analyse the crime and recidivism rates. As Brkić explains, as a complex feature of the effects of law rationality is a synthetic expression of efficiency, effectiveness, economy, and legitimacy. All these elements interact with each other, convergently or divergently: S Brkić, ‘Simplified Forms of Criminal Proceedings and the Procedure of their Legalization in the Republic of Serbia’ in S Bejatović (ed), Legislative Procedure and Criminal Legislation (Serbian Association for Criminal Legal Theory and Practice 2009) 163. Therefore, the efficiency and effectiveness of criminal proceedings are inseparable segments of rationality.

27 D Krapac, ‘Some Trends in Continental Criminal Procedure in Transition Countries of South-Eastern Europe’ in J Jackson, M Langer and P Tillers (eds), Crime, Procedure and Evidence in a Comparative and International Context: Essays in Honour of Professor Mirjan Damaška (Hart Publishing 2008) 119.

28 S Bejatović, ‘Plea Bargaining and Other Simplified Forms of Conduct in the Criminal Procedure Legislation of Serbia as Instruments of Normative Efficiency of Criminal Procedure’ in S Bejatović (ed), The Legal System of Serbia and the Standards of the European Union and the Council of Europe (book 4, Faculty of Law, University of Kragujevac Press 2009) 85–86.

29 Brkić, ‘Simplified Forms of Criminal Proceedings’ (n 26) 163; S Cigler, ‘Theses on the Cost-effectiveness of Criminal Proceedings’ (2009) (1-2) Glasnik Advokatske komore Vojvodine (n 71) 3.

30 According to Marcus Felson, an efficient criminal system can be measured like a hot furnace. If we put our hand on it, the pain, even if insignificant, should occur immediately; if the pain occurs only once every 500 times, and after several months, the furnace is not efficient: M Felson, Crime and Everyday Life (Faculty of Law, University of Belgrade Press 2011) 32.

31 D Radulović, ‘Efficiency of Criminal Proceedings and Its Impact on Crime Prevention’ in S Bejatović (ed), Real Possibilities of Criminal Legislation in Combating Crime (Serbian Association for Criminal Legal Theory and Practice 1997) 187; S Bejatović, ‘Duration of Criminal Proceedings as a Qualitative Component of Its Efficiency and Its Impact on Crime Prevention’ in S Bejatović (ed), Crimes of Violence (Institute of Criminological and Sociological Research 2002) 209.

32 Such ruling is not appealable.

33 Serbian Criminal Procedure Code, art 388.

34 T Vasiljević and M Grubač, Criminal Procedure Code: A Commentary (Službeni glasnik 2010) 656–57.

35 Republic of North Macedonia Criminal Procedure Code, art 371.

36 Croatian Criminal Procedure Code, art 407.

37 Criminal Procedure Code of the Bosnia and Herzegovina, art 251.

38 See more in M Bohlander, Principles of German Criminal Procedure (Hart Publishing 2012) 47.

39 Bulgarian Criminal Procedure Code, art 258.

40 Czech Criminal Procedure Code, s 219.

41 Finland Criminal Procedure Code, s 11, ch 6.

42 Swiss Criminal Procedure Code, art 335(1-2). See L Macula, ‘The Potential to Secure a Fair Trial Through Evidence Exclusion: A Swiss Perspective’ in S Gless and T Richter (eds), Do Exclusionary Rules Ensure a Fair Trial: A Comparative Perspective on Evidentiary Rules (Springer Open 2019) 25.

43 Scholars have argued that a provision prescribing the precise time period after which a main trial must begin anew should be imperative: D Radulović, Criminal Procedure Code of Montenegro: A Commentary (Montenegro Press 2009) 398.

44 M Škulić, Criminal Procedure Code: A Commentary (Official Gazzette 2006) 1032.

45 MS Groenhuijsen and H Selçuk, ‘The Principle of Immediacy in Dutch Criminal Procedure in the Perspective of European Human Rights Law’ (2014) 126(1) Zeitschrift für die Gesamte Strafrechtswissenschaft 265, 268.

46 Chernika v. Ukraine, 53791/11, 12 March 2020, s 48.

47 See eg Mellors v the United Kingdom, PK v Finland, 37442/97, 9 July 2002 and Cutean v Romania, 53150/12, 02 December 2014, s 61. In PK v Finland, the ECtHR considered that in the specific circumstances of that case the change in the composition of the court did not alone constitute a violation of Article 6, because the three lay judges remained the same throughout the proceedings, the credibility of the witness in question was at no stage challenged, nor was there any indication in the file justifying doubts about her credibility. The applicant’s conviction was not based only on the evidence of witness and there was nothing suggesting that the presiding judge was changed in order to affect the outcome of the case or for any other improper motive.

48 Isgro v Italy, 11339/85, 19 February 1991, s 34; Van Mechelen and others v the Netherlands, 21363/93, 21364/93, 21427/93, and 22056/93, 23 April 1997, s 51; PK v Finland, 37442/97, 9 July 2002.

49 PK v Finland; Chernika v Ukraine, s 47 and Beraru v Romania, 40107/04, 18 March 2014, s 64.

50 Graviano v Italy, 100756/02, 10 Febraury 2005, ss 39–40.

51 Berary v Romania, 40107/04, 18 March 2014, ss 64–66.

52 Cutean v Romania, ss 46 and 72. See V Puscasu, ‘Some Issues concerning the Application of the Principle of Direct Administration of Proofs before the Judge in Cases Where Composition of the Criminal Tribunal Changes’ [2017] Revista Forumul Judecatorilor 110. Judgments against Romania has led to the non-uniform practice in this country, because the national standard in the field is lower than the European one and it offers less protection to the defendant in the criminal proceedings: G Chihaia, ‘Considerations on the Right to a Fair Trial: Breaching of the Principles of Contradictory and Immediacy by Changing the Composition of the Panel of the Judges’ (2018) 11(2) Bulletin of the Transilvania University of Braşov 46.

53 A Balsamo, ‘The Content of Fundamental Rights' in R. Kostoris (ed) Handbook of European Criminal Procedure (Springer 2018) 131.

54 Škaro v Croatia, 6962/13, 6 December 2016, s 30.

55 Cerovšek and Božičnik v Slovenia, 68939/12 and 68949/12, 7 March 2017, s 45.

56 Famulyak v Ukraine, 30180/11, 26 March 2019, ss 40–47.

57 Svanidze v Georgia, 37809/08, 25 July 2019, ss 36.

58 The case Chernika v Ukraine, according to the ECtHR’s view, has to be distinguished from the case of Famulyak.

59 Here, I do not enter into the issue of a trial within a reasonable time.

60 V Turanjanin, ‘Video Surveillance of the Employees between the Right to Privacy and Right to Property after Lopez Ribalda and Others v Spain’ (2020) 5(2) The University of Bologna Law Review 269.

61 Radulović, ‘Criminal Procedure Law' (n 19) 70.

62 Ibid. 72.

63 Here it is worth mentioning that audio-visual recording of interrogations can serve as a key safeguard in criminal proceedings, especially for vulnerable suspects and children, which is emphasised in EU Directive 2016/800. See more in B Banović, S Bejatović, V Turanjanin, 'International Criminal Law' (Faculty of Law, University of Kragujevac Press 2020) 397–404; D Spasić, 'Electronis Recordings of Hearing of Suspected Persons: European Standards and Legal Framework' in S Soković (ed) Harmonization of the Serbian Legal System with EU Standards (Faculty of Law, University of Kragujevac Press 2020) 259–73.