Activity 1. Skim through the text to get an overview of what it includes. For many years now, Articles 5 and 6 have provided the bulk of complaintsexamined by the Strasbourg organs

For many years now, Articles 5 and 6 have provided the bulk of complaintsexamined by the Strasbourg organs. In their past case-law, they have established a number of key principles and concepts, which continue to dominate the approach today (e.g. avoidance of arbitrariness, effective access to court, equality of arms, the importance of the adversarial nature of criminal proceedings, effective presentation of the defence, the appearance of the open and fair administration of justice). It is perhaps unlikely that in the future the Court will come out with anything startlingly new. It is already evident however that it will give special attention to juvenile justice in line with other international instruments and that it will eventually have to face issues arising from technological developments. It also remains to be seen what scope the new member States in East and Central Europe will provide for innovation in the development of case-law. Nor can it be overlooked that older member States show periodic creativity in domestic law that may throw up new challenges to standards of civil and criminal justice and will doubtless continue to provoke further cases before the Court. Recent jurisprudence reflects a continued emphasis on principles of effective access to legal representation, equality of arms and the importance of maintaining confidence in the courts through the open and independent administration of justice. Concerning effective access to legal representation, it is worth notingthat the Court has, for the first time, applied Rule 39 indicating interim measures to the Turkish Government in the Ocalan case. This was to ensure that the PKK leader facing the death penalty was able to consult with his lawyers when he was brought back to Turkey from Kenya. The right to silence continues to be raised as an issue under Article 6. In the John Murray case, the Court found that drawing inferences from a suspect's silencein court or to police questioning was compatible with fair trial guarantees. However, the Court also found that the potential importance of the suspect's reactions after arrest were such that Article 6(3c) required access to a legal representative who could give advice as to the consequences. Cases concerning denial of access to lawyers in early stages of arrest continue to arrive from Northern Ireland. One recently declared admissible, Gerard Magee v. The United Kingdom, involved the applicant being arrested for a terrorist offence and denied access to a solicitor for 48 hours, although, as he made a confession shortly afterwards, no adverse inferences were drawn at his trial. This appears to indicate that the length of time of the denial of access to a solicitor may in due course be found by the Court to furnish grounds for finding a violation of Article 6(3c). At the same time, however, a case James Harper v. The United Kingdom was rejected as inadmissible. Here the applicant, also arrested for terrorist offences, did not see his solicitor for 48 hours and made confessions that led to his conviction. The Court rejected arguments that there was any 'absolute' right to advice on arrest, referring to the fact that the access had not been denied, the solicitor had merely failed to turn up, and the applicant had made no objection to continuing making confessions in the lawyer's absence. In respect of legal representation at hearings however, where there is a risk of imprisonment, failure to provide legal representation is a clear breach — see Perks and Others v. The United Kingdom. The importance of the appearance of fair proceedings has received closer scrutiny in recent cases concerning judges, in particular, the issue of when their participation in cases is incompatible with requirements of independence and impartiality. Several Turkish cases have held that the presence of a military judge on a criminal tribunal (the State Security Court which tries persons accused of offences against the indivisibility of the State) gave legitimate cause to doubt the independence and impartiality of the court. The doubt derived purely from the fact that a member of the armed forces was sitting and this gave rise to legitimate fears that the military judge might be unduly influenced by considerations which had nothing to do with the case. Though the military judges on the State Security Courts enjoyed the same constitutional privileges as civilian judges and were independent, no public authority being permitted to give them instructions, it was noted that they were still administratively members of the armed forces, subject to military discipline in the non-judicial sphere and promotion procedures. For some time, cases have touched on the uneasy relationship between first instance and appeal proceedings, in particular, the extent to which a defect in the trial procedures can be remedied before the appeal court. Some things can be remedied, it seems and some cannot. For example, in the case of Findlay v. The United Kingdom the Court found that the applicant soldier did not have a hearing before an independent tribunal at first instance due to the existence, inter alia, of hierarchical links between members of the tribunal and the officer who established and confirmed the result of the court martial. This case seems to indicate that the right to an independent and impartial court accrues at first instance and cannot be given piecemeal across different instances.

the bulk of complaints — основна маса скарг   avoidance of arbitrariness —уникнення свавілля effective access to court — ефективний доступ до суду equality of arms — рівність сторін adversarial nature of criminal proceedings —змагальний характер провадження у кримінальній справі fair administration of justice — справедливе здійснення правосуддя   juvenile justice — правосуддя у справах неповнолітніх in line with other international instruments — у відповідності з іншими міжнародними документами   maintain confidence in the courts — підтримувати довіру до судів   it is worth noting — варто зазначити interim measures — тимчасові заходи   draw inferences from a suspect's silence — робити висновки з мовчання підозрюваного police questioning — допитування поліцією compatible with fair trial guarantees — сумісний з гарантіями справедливого судового розгляду denial of access (to) — відмова в доступі (до)   confession — визнання     grounds for finding a violation — підстави для того, щоб визнати порушення reject as inadmissible — відхиляти як неприйнятну     leаd to one’s conviction — призводити до засудження   appearance of fair proceedings — видимість справедливого провадження closer scrutiny — уважніше вивчення   accused of offences against the indivisibility of the State — обвинувачений у злочинах проти неподільності держави     legitimate fear — законне побоювання   enjoy the same constitutional privileges as civilian judges —користуватися такими ж привілеями, як цивільні судді   remedу, v — виправити     due to — завдяки     court martial — військовий суд accrue at first instance — виникати у першій інстанції give piecemeal — надавати поступово (частинами)

Activity 2. Read the text carefully paying attention to the words and phrases in bold. Check your knowledge of the basic vocabulary looking at their Ukrainian equivalents in the margin.

Activity 3. Imagine you have been invited to the European Court of Human Rights. Think of your questions you are going to ask in order to clarify some points in respect of the right to a fair trial.

Activity 4. Write an essay on one of the topics:

1. Justice is the ligament which holds civilised beings and civilised nations together (Daniel Webster). Do you agree?

2. Little thieves are hanged, but great ones escape. Do you agree?

3. It is better that ten guilty persons escape than one innocent suffer. (William Blackstone). Do you agree?

Use the following words/phrases:

To list points: Firstly, first of all, in the first place, to begin /start with, secondly, thirdly, finally.

To list advantages:

One/Another/A further/An additional (major) advantage of this point of view is..

The main advantage of... is...

To list disadvantages:

Another /A further/An additional disadvantage/drawback of...

Another negative aspect of...

To introduce arguments for and against:

It could be argued that...

One very convincing argument in favour of.../against...

It is	often	argued	that...
	frequently	alleged
	widely	asserted
	generally	maintained
		believed
some scholars		support the view	that...
most people	are	of the opinion	that...
some lawyers		in favour of...
		against...
		opposed to...
		convinced	that...

Decide whether you agree or disagree with the subject of the topic, then make a list of your viewpoints and reasons. Start with:

I firmly believe... I (definitely) think that... I am inclined to believe that...

It strikes me that... To my mind... I am convinced that...

As far as I am concerned... In my opinion/view...

It is my (firm) belief/opinion/view/conviction that...