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The Truth as the Defeated in a Τrial

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By Giorgos Kazoleas, Lawyer Truth and trial are two concepts that seem to follow opposite paths, despite the fact that the former should be the purpose of the latter and despite the fact that the invocation of the truth during the trial is continuous and repeated.  In both civil and criminal trials the competition between the participants in the process is usually focused on distorting and misrepresenting the truth in order to make it convenient and ultimately accepted by the final arbiter, who is the judge. Witnesses are mostly prepared, if not «fabricated», to testify to what each party wishes to be proven. The truth in their testimony often seems to be lost or degraded in details which, however, are decisive for the needs of the trial. A deviation in the minute of time can affect the verdict, an omission of a seemingly insignificant fact can overturn a judicial conviction. Lawyers are masters at constructing the truth that is favorable each time, the version that will facilitate
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Anti-money laundering: European Council adopts rules which will make crypto-asset transfers traceable

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The EU is making it more difficult for criminals to circumvent anti-money laundering rules via crypto currencies. Recently the Council adopted updated rules on information accompanying the transfers of funds by extending the scope of the rules to transfers of crypto assets.  This ensures financial transparency on exchanges in crypto-assets and provides the EU with a solid framework that complies with the most demanding international standards on the exchange of crypto-assets, ensuring that these are not used for criminal purposes. Council’s decision is bad news for those who have misused crypto-assets for their illegal activities, to circumvent EU sanctions or to finance terrorism and war. Doing so will no longer be possible in Europe without exposure – it is an important step forward in the fight against money laundering. Under the new rules, crypto asset service providers are obliged to collect and make accessible certain information about the sender and beneficiary of the transf
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Murder-trial: Use of eyewitness evidence damaged trial fairness safeguards (ECtHR)

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In Chamber's judgment (1.6.2023) in the case of Erik Adamčo v. Slovakia (application no. 19990/20) the European Court of Human Rights held, unanimously, that there had been a violation of Article 6 (right to a fair trial) of the European Convention on Human Rights.  The case concerned the trial of Mr Adamčo as an accessory to two organised-crime-related murders, from the 1990s. The evidence used at the trial included testimony from persons who had confessed to having participated in the murders allegedly along with Mr Adamčo and who had agreed to cooperate with the prosecution in exchange for advantages. He was found guilty and sentenced to 25 years’ imprisonment.  The Court found in particular that the use of such evidence had not been accompanied by appropriate safeguards to ensure the overall fairness of the proceedings as the courts had distorted the content of some of that evidence and had paid no individual attention to the scope and advantages obtained by the collaborating
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Life imprisonment and the ECHR - New factsheet by Council of Europe

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Life imprisonment is compatible with the European Convention on Human Rights, as long as prisoners have some chance of being released and it is possible for their sentences to be reviewed. According to the European Court of Human Rights, national laws concerning life imprisonment must be sufficiently clear and certain. Prisoners should also know from the outset what they must do to be considered for release, and under what conditions. The Council of Europe’s  Department for the Execution of ECHR Judgments  has published a new factsheet on cases concerning life imprisonment. The factsheet summarises steps taken by nine member states on this issue in response to 20 different judgments from the European Court of Human Rights. It covers a number of specific issues relating to life sentences, including review mechanisms, conditions of detention and the risk of irreducible life sentences in extradition cases. This is the latest in a series of  thematic factsheets  on changes to nationa
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Legislative Proposal on Mutual Admissibility of Evidence and Electronic Evidence in Criminal Proceedings in the EU by European Law Institute

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The  European Law Institute (ELI) Legislative Proposal provides guidance on future EU legislative action in the field. It aims at harmonising approaches in EU Member States and, through it, enhancing the principle of mutual recognition in criminal matters and the protection of human rights of suspects and accused. At present, each EU Member State follows its own rules on criminal investigative measures for evidence gathering, resulting in different standards for its admissibility. When such evidence, including electronic evidence, is to be shared with other EU Member States, a clear mechanism governing its admissibility is needed. While there have already been a number of helpful studies on the admissibility of evidence in criminal proceedings and the need for more harmonisation at EU level as well as important advances in European judicial cooperation, these initiatives have so far not comprehensively addressed the rules that should be adopted regarding the mutual admissibility of
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Conviction for not promptly deleting unlawful comments on Facebook did not breach user's right to freedom of expression (ECtHR)

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In Grand Chamber judgment (15.5.2023) in the case of Sanchez v. France (application no. 45581/15) the European Court of Human Rights held, by a majority, that there had been no violation of Article 10 (freedom of expression) of the European Convention on Human Rights.  The application concerned the criminal conviction of the applicant, at the time a local councillor who was standing for election to Parliament, for the offence of incitement to hatred or violence against a group or an individual on grounds of religion, following his failure to take prompt action to delete comments posted by third parties on the “wall” of his Facebook account.  The applicant alleged that his conviction had breached his right to freedom of expression under Article 10 of the Convention. The criminal case had turned solely on the applicant’s lack of vigilance and failure to react in respect of comments posted by others. It had thus raised the question of the shared liability of the various actors involved in
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Rule of law: the body in charge of disciplinary proceedings against judges must be independent and impartial

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According to Judgment of the Court of Justice of the E.U. in Case C-817/21 (11.5.2023), the body in charge of disciplinary proceedings against judges must be independent and impartial. The rules governing the review of the actions of its director must be designed in such a way as to dispel any reasonable doubt in that respect. In Romania, a party in several criminal proceedings filed a number of disciplinary complaints with the competent Judicial Inspectorate against certain judges and prosecutors involved. Since all of those complaints were the subject of decisions to take no further action, that party lodged a complaint against the Chief Inspector, in respect of which it was also decided to take no further action.  She then turned to the Court of Appeal, Bucharest, Romania, to challenge those decisions to take no further action, claiming, inter alia, that it is impossible to bring disciplinary proceedings on account of the concentration of powers in the hands of the Chief Inspector.
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Refusal by the European Data Protection Board to grant full public access to draft versions of its statement on international agreements including transfers

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European Data Protection Board (EDPB) refused to grant full public access to draft versions of its statement on international agreements including transfers. The European   Ombudsman was not convinced by the reasons put forward by the EDPB to refuse access. The complainant asked the European Data Protection Board (EDPB) for public access to draft versions of its statement on international agreements including data transfers. Following a separate Ombudsman inquiry, the EDPB identified additional documents as falling under the complainant's request, however it refused access to these documents. In doing so, it invoked an exception provided for in the EU legislation on public access to documents, arguing that disclosure could undermine the decision-making process. Based on an inspection of the documents, the Ombudsman was not convinced by the reasons put forward by the EDPB to refuse access, and proposed as a solution that the EDPB reassess the request and reconsider its decision to
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Employee Rights: Daily rest is additional to weekly rest even when it directly precedes the latter (ECJ)

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According to the ECJ's Judgment (2.3.2023) in Case C-477/21 (MÁV-START), daily rest is additional to weekly rest even when it directly precedes the latter. This is also the case when national legislation grants workers a period of weekly rest greater than that required by EU law. A train driver employed by MÁV-START, the Hungarian national railway company, challenges before the Miskolc Regional Court the decision of his employer not to grant him a daily rest period of at least 11 consecutive hours (which the worker must be granted during each 24-hour period under the Working Time Directive) when that period precedes or follows a weekly rest period or a period of leave.  MÁV-START claims before the court that since the collective agreement applicable to the case grants a minimum weekly rest period (of at least 42 hours) that is well in excess of that required by the Directive (24 hours), its employee is not in any way disadvantaged by its decision. The Miskolc Regional Court asks th
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Freedom of expression of an eyewitness to a road accident protected by the European Convention

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In Chamber's judgment (23.3.2023) in the case of Udovychenko v. Ukraine (application no. 46396/14) the European Court of Human Rights held, unanimously, that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights. The case concerned the consequences for an eyewitness to a road accident of telling a journalist that she had seen the son of B., a former member of parliament, getting out of the driver’s side of the car.  In the proceedings brought against her by B. and his son accusing her of making a false statement to the media, she was required to prove what she had said. In the absence of proof, the Ukrainian courts found that her statement had been untrue and had damaged the honour, dignity and reputation of B. and his son. She was ordered to retract her statement and to pay damages.  The Court found that for the applicant to prove what she believed she had seen with her own eyes, as required by the national courts, would have b
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Science and Judicial Reasoning - The legitimacy of international environmental adjudication

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Science and Judicial Reasoning - The legitimacy of international environmental adjudication (Sulyok Katalin / 2022).  Science, which inevitably underlies environmental disputes, poses significant challenges for the scientifically untrained judges who decide such cases.  In addition to disrupting ordinary fact-finding and causal inquiry, science can impact the framing of disputes and the standard of review. Judges must therefore adopt various tools to adjust the level of science allowed to enter their deliberations, which may fundamentally impact the legitimacy of their reasoning. While neglecting or replacing scientific authority can erode the convincing nature of judicial reasoning, the same authority, when treated properly, may lend persuasive force to adjudicatory findings, and buttress the legitimacy of judgments. In this work, Katalin Sulyok surveys the environmental case law of seven major jurisdictions and analyzes framing techniques, evidentiary procedures, causal inquiries and
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