Court of Strasbourg’s judgments and imprisonment
If the applicant is a person who has been convicted by a criminal court, the violation denounced to the Court of Strasbourg concerns in most cases the violation of human rights regarding criminal justice as those granted by Articles 3, 5, 6 or 7 ECHR.
But in the same way, it’s obvious that the applicants denouncing the violation of human rights in criminal proceedings are, in almost all cases, people against whom a conviction has been pronounced and has come into force. This means that in many cases the person appealing to the ECtHR is almost always detained in prison because he or she has been sentenced to imprisonment. That’s the reason why the Court of Strasbourg’s judgments in criminal matters can determine the conditions of legal detention of the person who appealed to the European judge, according to art. 5 ECHR.On the basis of this art. 5 ECHR, the imprisonment can be considered unlawful when it appears that the conviction has involved a flagrant denial of justice (ECtHR, 26 June 1992, Drozd and Januseck vs France and Spain, § 110; ECtHR, 19 January 1994, Iribarne Perez vs France). In this perspective, the Stoichov vs Bulgaria case has been the landmark in the evolution of jurisprudence guaranteeing the right to liberty. This case claims the idea that people cannot remain in prison if the trial in which they were sentenced to imprisonment had been declared unfair by a pronouncement of the Court of Strasbourg (ECtHR, 3 March 2005, Stoichkov vs Bulgaria; however, in a less peremptory way, see ECtHR, 11 July 2017, Moreira Ferreira vs Portugal). This idea overcomes the conception of criminal definitive decision as an untouchable verdict, and there is no doubt that this new concept of res judicata in criminal law procedure is revolutionary.
The Court has held that if a ‘conviction’ is the result of proceedings which were a ‘flagrant denial of justice’, id est, was ‘manifestly contrary to the provisions of Article 6 or the principles embodied therein’, the resulting deprivation of liberty would not be justified under Article 5 § 1.
Consequently, if a criminal procedure is found to have been ‘manifestly contrary to the provisions of Article 6 or the principles embodied therein’, that will unavoidably lead to the conclusion that the applicant’s ensuing deprivation of liberty to serve the sentence imposed in these proceedings cannot be considered justified under Article 5 § 1 (a).On the other hand, if the conviction is not enough to justify the applicant’s detention in all the cases in which the ECtHR finds a violation of human rights in the criminal proceeding ended with that conviction, this underlines the absolute primacy of rule of law in the specific field of criminal proceedings. Since criminal proceedings have a strong impact on the personal sphere and the freedom of the accused, they can be initiated only if they strictly comply with the law. This means that a proceeding cannot be considered to be performed according to the law if the rights granted by art. 6 ECHR have not been observed.
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