THE BEST LAID SCHEMES ... THE UNINTENDED IMPACT OF THE EUROPEAN COURT OF HUMAN RIGHTS ON SCOTTISH CRIMINAL DEFENSE RIGHTS.

• Author: Burke, Ciaran

INTRODUCTION: THE CREEPING INFLUENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS

On January 21, 1959, Article 19 of the European Convention on Human Rights (ECHR) established the European Court of Human Rights (ECtHR). (1) The convention provides that the ECtHR is entrusted with overseeing the observance of the obligations incumbent upon contracting states under the convention itself and its various protocols. (2) The court's jurisdiction, recognized by forty-seven Council of Europe members, and indeed, its very existence, represent a significant step forward in human rights protection. While President Truman promised that global human rights protection would "be as much a part of international life as our own Bill of Rights is part of our Constitution," (3) the "international bill of rights" was diluted to a declaration--the Universal Declaration of Human Rights (UDHR), which "on its own .. . represented little more than an exhalation of hot pious air." (4) Equally, while specialist human rights treaties abound, the generalist conventions of the 1960s (5) lack judicial and enforcement mechanisms. Global human rights protection is a shadow of what it might have been. In this context, accomplishments of the ECtHR are truly remarkable. While other regional human rights tribunals exist, its work in providing real and concrete remedies to human rights violations is unsurpassed.

However, as more states have accepted the court's jurisdiction, it has been necessary for the ECtHR to deal with significant differences in the wide variety of legal systems in Europe. This left the court facing a stark problem. On the one hand, any attempt to deal with the exercise of the same right differently in different jurisdictions undermines the idea of universality. On the other hand, in order to secure the maximum protection for the rights of individuals in difficult circumstances and not impede the administration of justice--and with it, faith in human rights--it may be necessary to make some allowance for the particularities of individual legal systems. This dilemma went far beyond the traditional common law/civil law divide, and became particularly stark subsequent to the end of the Cold War. During the 1990s, many former Soviet satellite states in Eastern Europe acceded to the convention system/ (1) They brought with them needs, experiences, and legal systems with which the court was not necessarily familiar, placing the latter under pressure to reconsider some tenets of its own jurisprudence. The new member states raised questions regarding how an international human rights regime could possibly interact with notions of transitional justice. The "Margin of Appreciation" doctrine was developed in order to address this conflict. (7) However, such a tactic was neither realistic nor advisable in all circumstances, in particular where the court was confronted with clear violations of core rights.

It is perhaps germane to note that:

[W]hen the Court was set up, no one could have imagined that it would one day fill the European judicial space to the extent that it does today. Its current influence in Europe, and even beyond, could hardly have been predicted. (8)

That these words were spoken by the President of the Court emphasises their importance. In this light, the dilemma faced by the court requires careful attention, as it may have significant influence upon the development of human rights, both in Europe and around the world.

1. TRANSITIONAL JUSTICE

   The area of transitional justice has given scholars ample space to argue the merits of the competing approaches of constitutional relativism versus universality. (9) Indeed, the ECtHR itself has seemed unsure of which position to take in this context. In the 1984 case of Guincho v. Portugal, (10) the court stated that, though it could not:

   [O]verlook that the restoration of democracy as from April 1974 led Portugal to carry out an overhaul of its judicial system in troubled circumstances which were without equivalent in most of the other European countries, it could not permit Portugal to waver from its obligations under Article 1 of the Convention to effectively secure the rights contained therein."

   However, in the much later case of Mkrtchyan v. Armenia, (12) the court allowed for the fact that "it may take some time for a country to establish its legislative framework in a transition period," effectively allowing a certain margin of flexibility in situations analogous to those which Portugal had experienced in the 1970s. (13) Several further statements of the court are revealing in this regard. In the 2006 Grand Chamber judgment in _danoka v. Latvia, (14) the court explained when discussing the restriction of electoral franchise placed upon a Communist that While such a measure may scarcely be considered acceptable in the context of one political system, for example in a country which has an established framework of democratic institutions ... it may nonetheless be considered acceptable in Latvia in view of the historico-political context which led to its adoption and given the threat to the new democratic order posed by the resurgence of ideas which, if allowed to gain ground, might appear capable of restoring the former regime. (15)

   While the sentiments expressed in the _danoka and Mkrtchyan cases might provide a fruitful starting point for a discussion of political influence in the calculations of the ECtHR-and indeed a broader examination of interdisciplinarity in legal reasoning in general-such a discussion goes beyond what this essay aims to accomplish. Rather, the above extracts are employed to illustrate the fact that the court has, on occasion, been prepared to move beyond universalist application of human rights norms in order to achieve a more just outcome in the circumstances. (16) This is not to say that such an approach has been unerringly popular. One may draw attention to Judge Ress in Jahn and Others v. Germany, (17) who asked, in a dissenting opinion:

   What is exceptional in a transitional period? ... If the Court is going to accept that there may be reasons for the State to disregard human rights (whether it calls them exceptional or whatever), who then will protect the individual against interferences with these rights? (18)

   The argument is deeply persuasive, and yet, given the disparate protections afforded to human rights by the forty-seven domestic legal systems of the Council of Europe, it may well be the case that the universalist "one-size-fits-all" approach is not entirely appropriate for every human rights dilemma which confronts the court.

   The above cases concerned the permissibility of derogations to certain (derogable) rights under the convention in the context of transitional justice. However, it is argued in this paper that the principle of constitutional relativism, as opposed to the universality of fundamental rights, can have a much broader scope of application, extending it to instances where the same result (e.g. fair trial) can be achieved via different means, which are nevertheless equally effective. To assume the opposite approach by pushing universalism to its limits may have the result of bringing about significant and unwarranted changes in fortyseven legal systems (19) as a result of a concrete failure in one of them, while not taking into account the peculiarities of others, and thus, potentially leading to unexpected and undesired consequences. In the above context, this article shall discuss some recent developments concerning defense rights in Europe.

2. THE ECHR AND CRIMINAL LAW: ARTICLE 6 AND RECENT DEVELOPMENTS

   Article 6 of the ECHR deals with due process and fair trial guarantees. (20) It provides for the entitlement to a fair and public hearing, the presumption of innocence, and a number of minimum guarantees which any suspect must be accorded, including the right to know the charges against him, the right to legal assistance, and the right to an interpreter. (21) In this context, the application of Article 6 has principally touched upon criminal law, via a long line of cases before the ECtHR. (22) The court has been particularly slow to admit situations pertaining to the particular nature of domestic legal systems whereby rights may be fettered or restricted by reference to peculiar domestic circumstances. It is worth underlining the fact that the aforementioned Guinho v. Portugal judgment concerned an attempt by Portugal to eschew full application of the guarantees enshrined in Article 6 (via Article 1). (23) Here, the court was forthright in its rejection of such an approach, despite the transition to democracy that was taking place at the time. (24) In a similar vein, the court has ruled that military judges in Turkish state security courts are incompatible with the guarantees provided for in Article 6, despite the role played by the Turkish military as guarantor of the secular constitutional order. (25)

   Two related lines of case-law are discernible with respect to Article 6, showing that the court tends to maximise the Article's potential impact. The first includes those cases displaying the aforementioned penchant for a strict approach when dealing with rights arising under the Article. The second includes cases displaying a tendency toward extending the Article 6 guarantees to the greatest degree possible, and in particular, beyond "fair trial" stricto sensu, to rights which protect the suspect or detainee from the moment when he or she enters the criminal procedure process-in most cases, when he or she encounters the police. (26) In relation to the first trend, one may draw attention to two cases. In Heaney and McGuinness v. Ireland, (21) two Irish citizens were imprisoned for exercising their right to silence and refusing to incriminate themselves when accused of being engaged in terrorist activities. (28) The court stated "that the security and public order concerns relied on by the Government cannot justify...