The Principle of Equality of Arms - Part of the Right to a Fair Trial
| Author | Elisa Toma |
| Position | Legal Advisor S.C. UPC Romania S.R.L.; Criminal Law Master - Faculty of Law - University of Bucharest. |
| Pages | 1-12 |
1
THE PRINCIPLE OF EQUALITY OF ARMS – PART OF THE RIGHT
TO A FAIR TRIAL
Elisa Toma
*)
Abstract
The principle of equality of arms is a jurisprudential principle issued by the
European Court of Human Rights and is a part of the right to a fair trial written
in the (European) Convention for human rights and fundamental freedoms. With
this article the author wants to analyze this principle from jurisprudential and
legal point of view.
Keywords: equality of arms; fair trial; contradictory; jurisprudential
principal; defense organization
INTRODUCTION
Equality of arms is a jurisprudential principle of the European Court of
Human Rights (from now on called the Court). This principle is a part of the right
to fair trial, regulated by art. 6 of the (European) Convention for human rights and
fundamental freedoms (from now on called the Convention).
With this article we will debate differences between the ways this principle
finds its application and the ways the principle of contradictory does. It is very
interesting to see the resembling and the difference between these two principles,
the way they interact within a fair trial.
Also, we will analyze and highlight the safeguards in the Romanian
legislation which contain connotations of the principle of equality of arms.
Together with these guaranties, we will debate also on the prosecution
responsibility to bring to light the truth in every case always be respecting the law.
It is important to see the evolution the principle of equality of arms in the
Court’s jurisprudence, which since 1959 has continually enriched the content of
this principle and has strongly contributed to its correct interpretation and
differentiation.
1. THE PRINCIPLE OF EQUALITY OF ARMS AS ESSENTIAL
ELEMENT OF A FAIR TRIAL
1.1. The Court, using the privilege of the “elements that are always present
within a right” theory, has significantly enriched the content of the right to a fair
trial, governed by art. 6 of the Convention.
*)
Legal Advisor S.C. UPC Romania S.R.L.; Criminal Law Master – Faculty of Law –
University of Bucharest.
2
Thus, the right to a fair trial is divided now in three pylons
1)
. The central
pylon refers to the procedural safeguards stricto sensu, the equality of arms, the
independence and the impartiality of the court, the publicity and celerity of the
criminal trial. The text of the Art. 6 contains also two other material rights, the
right to access a court, the right for the enforcement of decisions. Also, in a
decision
2)
, the Court considers the right to access a court an inherent component
of the right to a fair trial.
1.2 . We will concentrate our research on the principle of equality of arms,
called by the Court
3)
a fundamental principle of the fair trial. („Toute personne a
droit a ce que sa cause soit entendue equitablement”).
1.3 . In terms of European law, equality of arms involves giving each part the
reasonable possibility to present its cause, in those conditions that will not put this
part in disadvantage against its opponent.
Therefore, the principle of equality of arms allows penalizing all inequalities
in communicating certain documents to part (example: sending only to the
prosecutor and not also to the defense the police reports
4)
).
1.4 . Hence, the parts must have the possibility to present in an equal manner
all the evidence they hold. As a consequence, a difference in treatment as far as
the witness interrogation is concerned may violate the principle of equality of
arms, any disparity in documents communication may be sanctioned in the name
of this principle. As well, it is mandatory to respect the principle of equality of
arms during the appeals.
1.5 . The Court affirmed that, as the other guarantees provided by art. 6 par. 1
in the Convention, the principle of equality of arms applies to any proceedings be
it contentious or gracious. When it is verified if the principle of equality of arms is
respected by the national courts, during a concrete procedure, the Court doesn’t
not have as purpose to rule on the case, no matter the object (criminal prosecution
or complaint concerning the civil rights and obligations).
1)
F. Sudre, 2005, Droit Européen et international, Ed. Presses Universitaire de Rance, 7e
édition refondue, p. 338.
2)
European Court of Human Rights, decision from 11
th
of February 1975, Golder versus
England, par. 41. All decision we will refer to in this article are available online at
www.echr.coe.int.
3)
European Court of Human Rights, decision from 17
th
of January 1970, Delcourt versus
Belgium, par. 21.
4)
European Court of Human Rights, decision from 27
th
of April 2000, Kuopila versus
Finlada, par. 37.
3
1.6 . Following a theory of the Court we consider that the principle of equality of
arms is an essential element of the broad notion of the right to a fair trial, which
directly interacts with the principle of contradictory in both civil and criminal matters.
1.7 . The French doctrine has revealed the idea
5)
that the wording of this
principle should be replaced with “principle of balance in the rights of parts”
(“équilibre des droits des parties”), as this form, being more abstract, is able to
complete better the requirements of the fair trial. In the same theory it was said
that the use of the word “arms” referring to the combatants of the criminal trial,
brigs the thought of the gladiators in the center of the arena, forced to comply with
the procedural rights equilibrium.
Despite this critique on the expression “equality of arms”, the doctrine and the
Court stay devoted to this already recognized formula.
2. THE PRINCIPLE OF THE EQUALITY OF ARMS IN
INTREACTION WITH THE PRINCIPLE OF CONTRADICTORITY
2.1. The jurisprudence of the Court has stated that the principle of equality of
arms is an element of the larger notion of the right to a fair trial, which
incorporates also the fundamental right of the contradictory nature of the court
6)
.
The principle of the equality of arms is extremely important as it implies
compliance with the right to defense or the necessity of a contradictory debate,
these being strong guarantees in which the principle lies. The Strasbourg Court
has reminded that the evidences must be presented, in principle, to the litigant, in
public session with an eye to a contradictory debate.
2.2 . The contradictory, closely related to the idea of equality of arms, imposes
to the judge to watch that any element, which can influence the solution of the
cause, to be the object of a debate between the parts. Each part must have not only
the faculty to make known the elements on which his claim is based, but the
faculty to know and to discuss any evidence or conclusion presented to the judge
with the purpose of influencing his decision. Is not relevant if the element able to
lead to a certain decision is brought to discussion by the parts or ex officio by the
court, even in this last scenario, the judge being obliged to impose its discussion.
2.3 . In the opinion of the Court, the contradictory impose, in criminal field,
the possibility for the defendant to fight the statements made by the victim by a
confrontation or by having the possibility to obtain the questioning of the victim
5
)
M. Jean-Pierre Dintilhac, L'égalité des armes dans les enceinte ju diciaires, available online
at http://www.courdecassation.fr/_rapport/rapport03/etudes&doc/7-etude -M-Dintilhac.htm.
6
)
P. Nicolopoulos, 1989, La procédure devant les juridictions répressives et le principe du
contradictoire, RSC, p. 3.
4
during the trial, statement that show the fact that the principle of equality of arms
applies also in the defendant – victim relation. Also, in order to realize the
criminal contradictory, the states are obliged to adjust their internal procedures so
that, the existing evidence to be produced during the public trial, so they can be
the object of the contradictory debate between the defendant and the prosecutor, in
front of the judge. In this context, it was said that the evidences, especially those
that are testimonial, must be produced in front of the first judge, being insufficient
having them presented only for the prosecutor, even if during this procedure the
defendant had the right to contest the evidences.
2.4 . For example, the Court has considered that the Romanian state had
violated the principle of contradictory
7)
, as the Supreme Court of Justice based its
decision on an accounting expertise relating to which one of the parts has not
received the summons.
2.5 . The jurisprudence of the Court has also stated that the principle of
equality of arms represents an element of the larger notion of the fair trial, which
incorporates the fundamental right to a contradictory trial. The right to a fair and
contradictory trial supposes the possibility to access the information concerning
the observations or documents presented by the other parts, and the possibility to
bring them into public debate.
The principle of equality of arms shouldn’t be confused with the principle of
contradictory. The relation between these two principles must be clarified
concerning the similarities, differences and their interactions.
2.6 . The Court states
8)
on the differences between the two principles in regards
to the case where the miscommunication of a document from the cause’s file affects
only one of the parts, when the other part had access to that document. It is
specified that in these situation we are confronted with a violation of the principle
of equality of arms. The parts must be treated in an equal manner, without having
one part enjoying a right to which the other didn’t had access. Opposed to this case,
if the both parts didn’t had the possibility to study a useful information that already
reached the judge, the violation concerns the principle of contradictory.
2.7 . The Strasbourg Court has analyzed and still analyzes the intervention of
the Public Ministry in a fair trial and accentuates its real function
9)
. So if the
7)
European Court of Human Rights, deci sion from 11th November 2006, Dima versus
Romania, par. 40.
8)
European Court of Huma n Rights, decision from 18
th
of February 1997, Niderost - Huber
versus Switzerland, par. 21.
9)
European Court of Human Rights, decision from 30
th
October 1991, Borgers versus
Belgium, par. 23.
5
prosecutor guarantees the objectivity of its interventions it means that all his
conclusions have a special authority and they are never neutral for the interested
part. To the notion of part strict sensu, is being opposed the notion of part lato
sensu, denoting the person of which intervention in the trial is not neutral, but
concerns an influence on the judge. The European Judge applies to the Public
Ministry the principle of equality of arms and the principle of contradictory, with
the purpose to organize the relation between the parts, from where we can extract
the behavior as a part – lato sensu – in a fair trial.
3. THE PRINCIPAL OF THE EQUALITY OF THE ARMS IN THE
DEFENSE ORGANIZATION
3.1. As per art. 6, alin. 1 from the Romanian Criminal Procedure Code, the
right to defense is guaranteed during the entire criminal trial for the defendant and
the other parts. Close to the main scope of this constitutional principle, the
defense has also an important meaning concerning the principle of equality of
arms. Thereby, art. 6, alin. 1 from the Romanian Criminal Procedure Code refers
to the obligation that the prosecution has in assuring for the defendant the
possibility to prepare the defense, before being questioned. In the art. 6, par. 5
from the Romanian Criminal Procedure Code it is stated the possibility for the
defendant to be assisted by an attorney.
From these legislative provisions we can detach the conclusion that the
defendant can use an attorney’s advices and help with the purpose of building his
defense against charges that are brought. This is a very important possibility as the
attorney has the knowledge, the necessary studies, equilibrating the balance
between the defendant and the prosecutor. In conclusion, by guaranteeing this right,
the defendant is being offered the possibility to prove its innocence on equal terms
with the criminal investigation body by using its own forces or by an attorney.
3.2. Equally, in the same spirit, the Convention stipulates in art. 6 paragraph
3, section 3 that the defendant has the right to defend himself or to chose an
attorney, and if the doesn’t have the financial resources to pay the attorney, he
should be provided with a lawyer free of charge.
3.3. Resorting to the theory of positive obligations
10)
, the Court reminds to the
signatory states that assuring the defense in the spirit of the principle of equality
of arms and the principle of contradictory represents “a positive measure” that
ensure compliance with the rights enounced in article 6 from the Convention.
10)
F. Sudre, op. cit., p. 236.
6
4. PROCEDURAL SAFEGUARDS IN THE SPIRIT OF THE
PRINCIPLE OF EQUALITY OF ARMS
4.1. Starting from guaranteeing the right to defense by assuring an attorney or
offering the possibility to choose one or to represent yourself, our internal
legislation is strewn with procedural safeguards that come to support the principle
of equality of arms.
If we start our demonstration with the first statement of the accused or
defendant and finish with his last word, we can distinguish certain turning points
during the prosecution or during the trial which support the defense and offers
equitable means to build defense for the accused.
4.2 . Prominent for the court research is the moment of the first statement of
the accused or defendant. Offering the possibility to make a statement means
introducing him into the course of the criminal trial. During this moment, the
accused or the defendant can find out the charges that are brought to him, can
reveal certain facts essential for the investigation, can deny the charges and can
inform the prosecutor on the circumstances that sustain his innocence. As we
already mentioned (par. 3.1), being assisted by an attorney during the first
statement is a possibility at the disposal of the accused or defendant during the
prosecution or the trial.
4.3 . During the prosecution it is recognized both internally and internationally
the right for the accused or defendant to remain silent and not make any declaration.
We must specify the fact that this right covers only the stage of persecution not the
stage of the criminal trial
11)
. More, this right, to remain silent (le droit de ne pas
temoigner contre soi-même) is only applicable in criminal trials
12)
.
4.4 . As per art. 250 from the Romanian Criminal Procedure Code, after
putting into motion the criminal action, if the prosecution finished its researched,
they have the obligation to present the prosecution material (all the evidence that
were collected during the investigation on this stage). So, in the spirit of the
principle of equality of arms, the prosecution informs the defendant on the
evidence and on the legal qualification of the criminal act. In this stage, the
accused can raise new claims or make more statements, so he can contest the
content that the prosecution material has and can let the prosecution know
information he considers relevant.
11)
European Court of Human Rights, decision from 8
th
of February 1996, Murray versus
England, par. 56-57.
12)
European Court of Human Rights, decision from 10
th
of Nove mber 2003, Otto BV versus
Postnbank NV, par. 60, 92.
7
4.5 . The proceedings of the trial stage begin by hearing the defendant. As a
guarantee for the right to defense, for the right to advocacy, the court starts by
hearing the defendant, and continues by hearing the other parts from the trial and
the prosecution.
4.6 . Besides from the possibility to make a statement that the defendant has
during the hearing, the court allows him, as per 341 from the Romanian Criminal
Procedure Code, to have a final word before closing the debate. This final word
represents also the last public moment of the criminal trial. In the spirit of the
right to a fair trial and culmination of the presumption of innocence, the defendant
received the final opportunity to combat the charges that are brought to him.
4.7 . We must specify that the hearings of the witnesses in the prosecution
investigation stage, as the first statement of the defendant are procedural sequences
that must be conducted only within the law, without exerting force or pressure. If
the legal limits are exceeded, then the criminal investigation is no longer under the
protection of the principle of equality of arms or of the right to a fair trial.
4.8 . From these procedural sequences, we can perceive legislator’s intent to
offer the possibility for the accused to defend himself, to equilibrate the balance
that used to lean in favor of the prosecution, in order to prove his already alleged
innocence
13)
during the criminal trial.
Thus, we can draw the conclusion that being compliant with the principle of
equality of arms and with the principle of a fair trial is one of the obligation also
inscribed in the Romanian Criminal Procedure Code. More, we can say the Code
is being lined with legislative levers build only with this purpose.
5. ROLE OF THE PROSECUTION IN COMPLIANCE WITH THE
PRINCIPLE OF EQUALITY OF ARMS
5.1. The prosecution role involves also the function of guarantor of equality
before the law, theory which sends to the principle of the fair trial and principle of
equality of arms in criminal field (art. 6 of the Convention, art. 10 from universal
Declaration of Human Rights and art. 14 of International covenant on Civil and
Political Rights).
5.2 . The principal of a fair trial send to the necessity to reconcile the state’s
intervention and the prosecution intervention – intervention that can be translated
by the will to punish all violation of the criminal law – with that search for the
truth by the prosecutor
14)
. From this point of view, we could say that the principle
13)
F. Sudre, op. cit., p. 374.
14)
A.Cluny, Public Ministry and the principle of equality, available online at
http://medel.bugiweb.com/usr/ClunyBruxelles.pdf.
8
of equality of arms must be conceived as a brake designed to safeguard the citizen
against disproportion to the coercive force of the state.
5.3 . From here forward, we can deduce that the principle of equality of arms
(„parité des armes”) was conceived as an equity instrument and is intended to
refer to values and criteria of proportionality. It involves certain procedural
safeguards, certain rights of the accused or the defendant, safeguards that ensure a
fair and not abusive investigation for all causes under research.
5.4 . As regards the participation in the debates of prosecution, the presence of
the general attorney in the deliberations of the Court of Cassation was deemed
contrary to the requirements stipulated in art. 6 of the Convention (in some
countries it is customary for the Public Ministry to assist in the deliberation but
not to speak or vote). The Strasbourg court considered that, irrespective of the
recognized objectivity of the general attorney or the general prosecutor, this one,
recommending the rejection of an appeal, was becoming an objective ally or
adversary of one of the parts, and his presence during the deliberation, was
offering, even if just apparently, an additional opportunity to support his
conclusions in the council chambers.
5.5 . The Court
15)
has decided that the participation of the general attorney
during the deliberation of the court breaks art. 6 par. 1 from the Convention. In
this decision, the prosecution was highlighting that the public presentation of a
magistrate’s opinion would not affect the duty of impartiality, in extent that the
general attorney, during the deliberation, represents only one opinion among other
magistrates and could not influence the others. For the Court, the presence of the
general attorney is reprehensible in itself, whether active or passive.
6. EQUALITY OF ARMS IN THE JURISPRUDENCE OF THE
EUROPEAN COURT OF HUMAN RIGHTS
6.1. The redactors of the Convention have subscribed the right to a fair trial
between the fundamental rights: “Toute personne a droit à ce que sa cause soit
entendue équitablement (...) par un tribunal indépendant et impartial”.
Even if the expression “equality of arms” is not found in the body of the
Convention, the Court of uses it to express trust in equity, independence and
impartiality, but also as an autonomous component of the fair trial. From here, we
can conclude that the distinction between the equality of arms and the principled
that condition the principle of a fair trial is not always easy, as far as the
jurisprudence of the Court.
15)
European Court of Human Rights, decision from 7
th
of July 2001, Kress versus France, par. 56.
9
6.2 . The European Commission first concluded on the principle of equality of
arms in 1959
16)
: “Le droit à un procès équitable implique que toute partie à une
action civile et a fortiori à une action pénale, doit avoir une possibilité raisonnable
d'exposer sa cause au tribunal dans des conditions qui ne la désavantagent pas
d'une manière appréciable par rapport à la partie adverse”. What is essential is
that none of the part to be adversely affected by report to other parts.
6.3 . Following this jurisprudential step, the Court refers
17)
for the first time to
the equality of arms as a component of the fair trial in front of an independent and
impartial court. Also, the Court gives
18)
to the word of “equity” its etymological
meaning of “aequitas”. So, it formulates the principle “per a contrario” judging
that a trial would not be equitable if it would run in “conditions likely to place a
part in an unfair situation”.
6.4 . The Strasbourg Court decides
19)
that the equality of arms is applicable in
all procedures that put into question civil right and obligations, even if the content
of this principle does not have civil or criminal implication
20)
.
6.5 . As the Court considers that the field where this principle applies has a
general nature, it hasn’t received an absolute character: there is no need for the
states to establish a strict procedural equality between the parts, but only make
sure that the parts have a situation reasonably equal. What is important is that
none of the parts has a privileged position during the trial, referring here to the
prosecution also
21)
.
6.6 . If we would refer to the prosecution, the Court estimates that the equality
of arms does not regard only the parts but any intervention able to influence the
court’s decision in a certain way. On the same ground, the Court decides
22)
that the
16)
European Court of Human Rights, decision from 30
th
of June, 1959, Szwabowicz versus
Sweden, par. 30.
17)
European Court of Human Rights, decision from 27
th
of June 1968, Neumeister versus
Austria, par. 43.
18)
European Court of Human Rights, decision from 17
th
of January 1970, Delcourt versus
Belgium, par. 18.
19)
European Court of H uman Rights, decision from 23th of June 1993, Ruiz Mateos versus
Spain, par. 30.
20)
European Court of H uman Rights, decision fro m 27
th
of October 1993, Dombo Beheer
B.V. versus Nederland, par. 31.
21)
European Court of Human Rights, decision from 22
nd
of September 1994, Hentrich versus
France, par. 7-8.
22)
European Court of Human Rights, dec ision from 17
th
of March 1998, X versus Netherland ,
par. 35-36.
10
situation of communicating only to the general attorney the report of the reporting
counselor is a breach not compliant with the principle of equality of arms.
6.7 . The Strasbourg Court has decided that in the situation where the
prosecutor formulates its conclusions that a certain law disposition applies and the
solution heads in a certain direction, there is no violation of the art. 6, as long as
the part with an opposite position had access to same information. Within several
decisions
23)
, concerning the role of the general attorney (commissaire du
government) under the French State Council (Conseil d’Etat), the Court refers to
the influence this character has on the deliberation. In the cause versus Belgium,
the defendant didn’t had the opportunity to answer to the alleged charges, his right
to defense was restraint because he did not had the possibility to debate on the
adverse findings of the prosecution, hence resulting violation of several aspects of
art. 6 (principle of equality of arms, principle of contradictory).
6.8 . As far as the opinion of the Court in the field of equality of arms
concerning the administration of evidences, it was decided that
24)
the principle was
not respected in the situation where not all parts have the opportunity to question in
a fair way witnesses. In the same spirit, the Court has decided at the expense of the
prosecution
25)
regarding the court competence to dispose or to deny a court research
measure. In the same case, the court denied for one of the parts the request to
administrate a research measure, violation the principle of equality of arms.
Even the failure to communicate, by the claimant, of certain documents with
high importance for the trial (example: written point of view of the general attorney
of the High Military Administrative Court, classified documents in a trial at the
High Military Administrative Court) was sanctioned by the Court as a breach in the
principle of equality of arms
26)
. Appling the same mechanism in similar causes
27)
,
from the breach perspective, the Court considered that the claimant was not
protected by the safeguards from the art. 6 paragr. 1 from the Convention.
23)
Europ ean Court of Human Rights, decision from 7
th
of June 2001; Kress versus France,
par. 56; European Court of Human Ri ghts, decision from 31
st
of October 1991, Borgers versus
Belgium, par. 22.
24)
European Court of Human Rights, decision from 27th October 1993, Dombo Beheer
versus Netherland, par. 30.
25)
European Court of Human Rights, decision from 24
th
of October, H. contra. France, par.
46-47.
26)
European Court of Hu man Rights, decision from 21
st
of April 2009, Cauza Miran versus
Turkey, par. 13.
27)
European Court of Human Rights, decision from 31
st
of October 2006, Aksoy (Eroğlu)
versus Turkey, par. 93.
11
6.9 . Regarding the evidences, the Court decided the principle of equality was
violated in the case where it was not permitted for one of the parts to interrogate a
different specialist then the one already proposed and questioned in that trial
28)
,
whom testified against that part. The expert’s testimony had considerably
influenced the trial’s course and the final decision. So, in the spirit of the art. 6
par.1 from the Convention, the European Court decided there was a violation of
the right to a fair trial.
6.10 . As far as the respect of the principle to a fair trial during the appeal is
concerned, the Court of had decided that offering the possibility to file for appeal
only to the general attorney, the superior of the prosecutor that participated in the
initial trial, without offering this possibility to the claimant too is not compliant
with the limits of the equality of arms
29)
.
As a consequence, the principle must be applied in the first and second appeal too.
Conclusion
The differentiation we tried to do between the principle of equality of arms
and the principle of contradictory, as well as the integration of the equality of
arms into the principle of the fair trial are necessary in order to define the place
that the equality of arms has as a jurisprudential principle of the Court.
By noting and focusing on the legislative levers the Romanian legislator had
introduced in the Romanian criminal procedural code, we tried to point out the
terms in which the protection of equality is realized in the Romanian criminal trial.
To these legislative safeguards we connected the important role that the
prosecution plays as far as finding the truth in a criminal cause, watching at the
same time, to respect all the principles deriving from the right to a fair trial,
including the equality of arms.
Also, it was interesting to see the development that the principle of equality of
arms had along the European jurisprudence, starting from 1959 until present time,
earning new valences and lot of trust from European legislations.
We could say that many times, the Court has sanctioned mistakes regarding
the principle of equality of arms. During the criminal trial, this principle had a
major influence in assuring that the truth always comes, the law being respected
as far as the fact and the guiltiness are concerned.
In consequence, in the spirit of the art. 6 from the Convention and in order to
closely watch the Court jurisprudence, the internal legislation are obliged to be
compliant in order to avoid other errors.
28)
European Court of Human Rights, decision from 6
st
of May 1985, Bonisch versus Austria,
par. 21-23.
29)
European Court of Human Rights, decision from 27
th
of January 200 9, Precup versus
Romania, par. 27, 29.
12
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