The European Court of Human Rights: The Fair Trial Analysis Under Article 6 of the European Convention of Human Rights

Abstract

The European Convention of Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR) are binding on all of the countries featured in this book, with the exception of the United States and Taiwan. Despite this importance, however, the ECtHR treats the decision to exclude evidence, or not, as a question of domestic law with which it will not interfere unless the use of the evidence at trial would violate the right to a fair trial guaranteed by Article 6 ECHR. The ECtHR thus uses a balancing test not dissimilar to that used in England and Wales. While the ECtHR has never found a violation of the Art. 8 ECHR right to privacy in one’s home or communications to affect the fair trial right and thus require exclusion, it has, with the decision of Salduz v. Turkey in 2009 developed strong case law finding a violation of the right to a fair trial if a confession taken in violation of the right to counsel is admitted into evidence. It has also enunciated a categorical exclusionary rule for statements taken in violation of the Article 3 ECHR prohibition of torture or inhuman and degrading treatment and has extended this unequivocally to the physical fruits of the poisonous tree in cases of torture.