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Investigating crime; and

Investigating crime; and ensuring the integrity of the criminal process Page 77 In any case, the ultimate question under Article 6 is whether criminal proceedings as a whole were fair, that is, ‘what the proper administration of justice required’ in the particular circumstances. 222 ‘Fairness’ can generally be stated to involve four main constituent elements: proceedings which are adversarial in character; fair rules of evidence; legal certainty; and the issuing of a reasoned judgment. The requirements of a ‘fair hearing’ in the determination of criminal charges are more demanding than in respect of civil proceedings since the text of the provision makes clear that additional guarantees (found in paragraphs (2) and (3)) apply in criminal cases. 223 While an individual may waive his rights under Article 6 (for example, by declining the services of a lawyer during questioning), this may only happen providing that he does so by ‘his own free will and in an unequivocal manner’ and as long as no issue of public interest is involved. 224 When does Article 6 apply? Article 6 applies to all ‘criminal charges’. This is given an autonomous interpretation and is thus not dependent upon domestic classification. There are two principal issues: first, the stage during a criminal investigation at which a ‘criminal charge’ can be said to exist; and secondly, the circumstances in which a matter considered by domestic law as merely disciplinary or enforced through an administrative penalty will fall, nevertheless, to be considered as a ‘criminal charge’ for the purpose of the guarantee. The first issue is important in identifying the stage at which rights in terms of Article 6 come into play. The concept of a ‘charge’ is not dependent upon domestic law. It involves ‘the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence’, that is whether the situation of the suspect has been ‘substantially affected’. 225 It is possible for Article 6 rights to apply even though an individual has not been formally charged in domestic law with an offence. This means that initial proceedings at the outset of a criminal process may therefore fall within the scope of Article 6: for example, by arresting an individual; 226 by the issue of an arrest or a search warrant; 227 by the imposition of a requirement to give 222 Vaudelle v France, judgment of 30 January 2001 at paragraphs 57-66. 223 Dombo Beheer BV v the Netherlands, judgment of 27 October 1993 at paragraph 32. 224 Albert and Le Compte v Belgium, judgment of 10 February 1983 at paragraph 35. 225 Deweer v Belgium, judgment of 27 February 1980 at paragraph 46. 226 B v Austria, judgment of 28 March 1990 at paragraph 48. 227 Eckle v Germany, judgment of 15 Juy 1982 at paragraphs 73-75.

The European Convention on Human Rights and Policing Page 78 evidence; 228 or by other official measures which implicitly allege possible criminal liability and which similarly ‘substantially affect the situation of the suspect’. The second issue is whether proceedings are ‘criminal’ even though they may be labelled as ‘disciplinary’ or ‘administrative’ in domestic law. Domestic classification is not determinative unless the nature of the classification of the offence in domestic law is ‘criminal’: if so, then Article 6 applies. Substance rather than form is of the essence in relation to ‘administrative’ offences; and thus the severity of the penalty which could be imposed upon a determination of guilt is of significant importance. As a general rule, if the penalty could involve loss of liberty, the offence should be taken to give rise to a ‘criminal’ charge. However, whether the offence is normally seen as ‘criminal’ in other European States may also be relevant. ■ In Öztürk v Germany, the applicant had collided with a parked car and had been subsequently served with a notice imposing a fine and costs. After an unsuccessful appeal against this notice, he had been ordered to pay additional costs and expenses including the fees of an interpreter. His application challenged the violation of the right to a free interpreter under Article 6(3)(e), but it was argued in turn that the case had not involved a criminal charge. The Court first noted that the ambit of the criminal law normally included ‘offences that make their perpetrator liable to penalties intended, inter alia, to be deterrent and usually consisting of fines and of measures depriving the person of his liberty’. Further, the type of road traffic offence in question was classified by the overwhelming majority of European legal systems as criminal, as opposed to administrative, and it was a legal rule which was directed ‘not towards a given group possessing a special status – in the manner ... of disciplinary law – but towards all citizens in their capacity as road users’ enforced by a sanction that was punitive. Accordingly, the imposition of the administrative penalty (even though it was relatively light) constituted the determination of a criminal charge. 229 The investigation of crime – use of undercover officers, etc.: Article 6, European Convention on Human Rights In terms of Article 6, a crucial distinction exists between the investigation of criminal behaviour and its incitement. While recognising the need to use undercover agents, informers and covert practices in tackling organised crime 228 O’Halloran and Francis v the United Kingdom, judgment of 29 June 2007 at paragraph 35 (requirement under road traffic legislation to provide details of person driving a vehicle). 229 Öztürk v Germany, judgment of 21 February 1984 at paragraphs 53-54.