Case Watch: Due Process Doesn’t Stop with the Trial Judgment

In our "Case Watch” reports, lawyers at the Open Society Justice Initiative provide quick-hit analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.

The right to a fair trial is fundamental, and due process rights are given extensive protection in Article 6 of the European Convention on Human Rights, as they are in other international and regional human rights treaties. Last week, in the decision of Serrano Contreras v Spain, the European Court once again illustrated the importance of the right of accused persons to present and challenge evidence and underscored that these rights must be respected at all stages of the proceedings.

Bernardo Serrano Contreras had been charged with forgery and fraud in relation to supplying false labels for agricultural seeds in order to benefit from EU subsidies. The trial court acquitted him. However, the prosecutor and the association of seed producers each filed appeals against this acquittal on points of law. The Supreme Court granted the appeal, entered a conviction against Serrano Contreras, and sentenced him to four years’ imprisonment.

The notion of a prosecutor appealing an acquittal, or of a civil party such as a seed producers’ association having any standing in a criminal trial, may seem strange to lawyers who trained and practiced in common law systems. But these are features of many civil law systems, and can be entirely consistent with the principles of a fair trial when they are implemented with appropriate safeguards.

In this case, however, it appeared that some of those safeguards were lacking. The Supreme Court did not hold a public hearing or give Serrano Contreras an opportunity to make oral submissions. Further, in its judgment, the Supreme Court did not confine itself to questions of law but instead departed from the facts which the Trial Court had found; and did so based on evidence which had not been examined by the Trial Court. This was not limited to peripheral or purely formal questions, but included a key issue of whether Serrano Contreras was aware of the forgery. Given that the Supreme Court had made a new factual finding, based on new evidence, on an issue which was decisive for the guilt of the accused, all without allowing him an opportunity to give evidence in person, the European Court held that this violated Serrano Contreras’s right to defend himself under Article 6(1) of the ECHR.

In reaching this conclusion, it appears that the Court applied its general principles of fair trial, rather than creating specific rules for appeals. These general principles include the principle that before an accused can be convicted, all the evidence must normally be produced in his or her presence at a public hearing so that it can be challenged. This principle is not absolute, as the Grand Chamber of the European Court illustrated last year in the cases of Al-Khawaja and Tahery v UK. Rather, the Grand Chamber examined in each case whether it was necessary to admit evidence that could not be challenged by the accused; whether the evidence was decisive (including whether it was the sole evidence); and whether the procedural safeguards or other counterbalancing measures were adequate. In one case, the witness was dead, her evidence was corroborated, and the Grand Chamber found no violation. In the other, the witness was the only eye witness who claimed to see a stabbing, and was available but too scared to testify in court, so the Grand Chamber held that there was a violation.

The finding of a violation in the case of Serrano Contreras appears entirely consistent with this framework: the chamber focused on the fact that the evidence was decisive for his guilt, but it is also difficult to see why it was necessary to prevent him from being present to hear and refute the new evidence in person, nor is there any indication that there were adequate procedural safeguards.

The right to a fair trial must be respected at all stages of the proceedings. The Justice Initiative works extensively on the rights of persons in the pre-trial phase, including the right of all persons to effective legal assistance from the earliest stages of the investigation. This case is a reminder that while we must ensure that the right to a fair trial extends to protect those under investigation, it must also extend to protect persons in criminal appeals.