301 / 464
287
THE HUMAN RIGHTS DIMENSION OF THE ICC'S COMPLEMENTARITY REGIME
the defendant was unable to consult his/her lawyer out of the hearing of third parties, or
where contact with the lawyer, in a complex case including numerous acts of violence,
was restricted to two one-hour visits per week.
71
Cases concerning the commission
of crimes under international law attracting interest of the ICC will definitively be
equally as complex as the Öcalan case considered by the ECHR – quantification
given by the ECHR could thus be used as a guideline for the ICC.
Next, a flagrant denial of a fair trial, and thereby a denial of justice, occurs
where a person is detained because of suspicions that he/she has been planning or
has committed a criminal offence without having any access to an independent and
impartial (domestic) tribunal to have the legality of his/her detention reviewed.
72
In
such situations a case could be referred to the ICC.
73
The last demonstration of flagrant denial of justice useful for the purposes of
interpretation of the term
‘egregious violations of the rights’ rests in admission in
criminal proceedings of statements end evidence obtained as a result of torture.
74
The ECHR considers that the admission of torture evidence is manifestly contrary
to the most basic international standards of a fair trial. It makes the whole trial
not only immoral and illegal, but also entirely unreliable in its outcome. It would
therefore be a flagrant denial of justice if such evidence were admitted in a criminal
trial.
75
Interestingly, in the
Othman
case, the Court did not exclude that similar
considerations may apply in respect of evidence obtained by other forms of ill-
treatment which fall short of torture.
76
A few months later the ECHR explicitly
confirmed that the use in criminal proceedings of statements obtained as a result of
a violation of Article 3 – irrespective of the classification of the treatment as torture,
inhuman or degrading treatment – renders the proceedings as a whole automatically
unfair.
77
Moreover, according to the Court, these principles apply not only where the
victim of treatment contrary to Article 3 is the actual defendant but also where third
parties are concerned.
78
To conclude, all instances of flagrant denial of justice (be it refusal to reopen
proceedings conducted in the accused’s absence, total disregard for the rights of
defence, deliberate and systematic refusal of access to a lawyer, lack of access to an
independent and impartial tribunal, admission of statements and evidence obtained
through torture, inhuman or degrading treatment) fit into the scheme of egregious
71
Öcalan v. Turkey, para 137.
72
Al-Moayad v. Germany
, para 101.
73
This instance of flagrant denial of justice might potentially signal inactivity of a State rather than its
unwillingness. That would be a case in total absence of any investigative steps – compare supra note 9.
74
Othman (Abu Quatada) v. the United Kingdom
, paras 263-267.
75
Ibid
., para 267.
76
Ibid.
77
El-Haski v. Belgium
. Appl. no. 649/08. ECHR, Second Section, Judgment, 25 September 2012, para 85.
78
Ibid
., paras 85-86.