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286
ONDŘEJ SVAČEK
CYIL 6 ȍ2015Ȏ
required is a breach of the principles of fair trial guaranteed by Article 6 which is so
fundamental as to amount to a nullification, or destruction of the very essence, of the
right guaranteed by that Article.
63
At first sight, this high threshold required by the
ECHR could potentially well serve the purpose of ‘egregious violations of the rights’
in the admissibility proceedings before the ICC.
Until recently, the most elaborated interpretation of the term flagrant denial
of justice has been brought by the ECHR in the
Othman (Abu Quatada)
case.
64
The ECHR summarized its own preexisting case law and indicated which forms of
unfairness
could
meet the strict requirement of this test.
Firstly, the ECHR gave an example of the refusal to reopen proceedings conducted
in the accused’s absence, without any indication that the accused has waived his or her
right to be present during the trial.
65
What is important, as such, is that domestic trials
in absentia
do not necessarily render a case before the ICC admissible.
66
Nevertheless, if
a domestic legal order permits the proceedings in the absence of the defendant, failure
to conduct a trial
de novo
once the presence of the defendant is secured would amount
to a flagrant denial of justice that would potentially make a case admissible before
the ICC.
Next, the
Othman
decision rejects a trial which is summary in nature and conducted
with a total disregard for the rights of the defence. With reference to preexisting case
law, this requirement encompasses
e.g.
proceedings where it transpires that no oral
evidence was taken at the hearing, that all the evidence examined was submitted by
the prosecutor and that neither the accused nor even his defence lawyer was present
at the hearing at all.
67
Another aspect of flagrant denial of justice, akin to the previous one, consists
in a deliberate and systematic refusal of access to a lawyer.
68
The right of access to
a lawyer may also be relevant before a case is sent for trial from the initial stages of
police interrogation, but it is admitted that, at this early stage, it may be subject to
restrictions.
69
The same approach was adopted by the ICC in
Al-Senussi
.
70
Nevertheless,
once the proceedings reach the trial stage, failure to guarantee access to a lawyer might
amount to a flagrant denial of justice. The ECHR confirmed this
e.g.
in processes where
63
Ibid
., para 563.
64
Othman (Abu Quatada) v. the United Kingdom
. Appl. no. 8139/09. ECHR, Fourth Section, Judgment,
17 January 2012, paras 258-267.
65
Compare e.g.
Sejdovic v. Italy
. Appl. no. 56581/00. ECHR, Grand Chamber, Judgment, 1 March
2006, para 84.
66
Nouwen, S.: sub 24, p. 81.
67
Bader and Kanbor v. Sweden
. Appl. no. 13284/04. ECHR, Second Section, Judgment, 8 November
2005, para 47.
68
Al-Moayad v. Germany
. Appl. no. 35865/03. ECHR, Fifth Section, Decion on Admissibility,
20 February 2007, para 101.
69
Öcalan v. Turkey. Appl. no. 46221/99. ECHR, Grand Chamber, Judgment, 12 May 2005, para 131.
70
ICC-01/11-01/11-565, para 191.