This book addresses the European Court of Human Rights’ fairness standards in criminal appeal, filling a gap in this less researched area of studies. Based on a fair trial immediacy requirement, the Court has found several violations of Article 6 of the European Convention on Human Rights at the appellate level by at least eighteen States of the Council of Europe in a vast array of cases, particularly in contexts of first instance acquittals overturning and of sentences increasing on appeal.
On the one hand, the book critically engages this case-law with the law revisions it has recently inspired in European countries, as well as with the critiques and difficulties that it continues to raise. On the other hand, it interweaves insight from criminal procedure theory with new discoveries in the field of cognitive sciences (neuroscience of memory, philosophy of knowledge, AI), shedding an interdisciplinary light on the (in)adequacy and limits of the Strasbourg Court’s jurisprudence.
Author(s): Helena Morão, Ricardo Tavares da Silva
Publisher: Springer
Year: 2023
Language: English
Pages: 213
City: Cham
Acknowledgments
About This Book
Contents
About the Editors
Abbreviations
Part I: Introduction
Chapter 1: The ECtHR Case-Law on Immediacy in Criminal Appeal
1.1 The ECtHR Case-Law on Immediacy in Criminal Appeal
1.2 Key Question and Structure
Cited Case-Law
References
Part II: Criminal Appeal Immediacy Models and the ECtHR Case-Law
Chapter 2: The Evidence Renewal Model in Italy
2.1 The Physiognomy of Appeal in the Criminal Justice Review System
2.1.1 The Proceedings. Hearing of the Appeal
2.1.1.1 Renewal of Evidentiary Hearings
2.1.1.2 Procedure for Introducing Evidence
2.1.2 Proceedings in Chambers
2.1.3 The Decision
2.2 Immediacy in Criminal Appeal Under the New Article 603 § 3 bis ICPP
2.3 Convictions Against Italy for Violation of Article 6 § 1 ECHR
2.3.1 Lorefice v. Italy
2.3.2 Tondo v. Italy
2.3.3 Maestri and Others v. Italy
2.4 Immediacy in Appeal and Accelerated Trial Procedure: The ECtHR Judgment in the Di Martino and Molinari v. Italy Case
2.5 Amendments on the Horizon: The ``Cartabia Reform´´
Cited Case-Law
References
Chapter 3: The Retrial Model in Spain
3.1 Introduction
3.2 The Right to Appeal in Criminal Proceedings
3.3 The Opinion of the United Nations Human Rights Committee and the Reaction of Spain
3.4 The Criminal Appeal in Spain and Its Configuration Problems
3.4.1 Characteristics of the Appeal
3.4.2 The Second Instance
3.4.2.1 Single or Double Instance System
3.4.2.2 Full or Limited Appeal
3.5 The Purpose of the Appeal in Our Legal System
3.5.1 Appeals and the Second Instance in Criminal Cases
3.5.1.1 Appealable Decisions
3.5.1.2 Jurisdiction
3.5.1.3 Grounds for Appeal
3.5.1.4 Procedure
3.6 Most Problematic Aspects of the Second Instance in Spain
3.6.1 Appeals Against Convictions
3.6.2 Appeal Against Acquittals
3.7 Immediacy and Evidence at Second Instance. Special Reference to Conviction in the Second Instance After Acquittal
3.8 The Recording of Trials and Their Assessment in the Second Instance
Cited Case-Law
References
Chapter 4: The Recordings Model in Portugal: The Appeal Court´s Perspective
4.1 Introduction
4.2 The Audio Recordings Model
4.3 The Predominance of the Dismissal of the Appeal
4.3.1 The Limited Appeal of Factual Matter (Article 410 § 2 of the PCPP)
4.3.2 The Global Appraisal of Facts Relating to the Guilt or Innocence of the Defendant (Article 412 § 3 of the PCPP)
4.4 The Grant of the Appeal on a Factual Matter
4.4.1 Based on the Analysis of the Written Contested Decision (Article 410 § 2 of the PCPP)
4.4.2 The Broad Appeal of a Factual Matter and the Use of Audio and Video Recordings (Article 412 § 3 of the PCPP)
4.4.2.1 From Acquittal to Conviction
4.4.2.2 From Conviction to Acquittal
4.5 The Referral of the Case for a New Trial
4.6 The Direct Evaluation of the Oral Evidence at the Appeal Hearing
4.7 Conclusion
Cited Case-Law
References
Chapter 5: The Recordings Model in Portugal: The Defendant´s and the Victim´s Perspectives
5.1 Introduction
5.2 Immediacy in the Appeal Stage: The PCPP in Law and in Action
5.2.1 The Legal Provisions Applicable to the Appeal Stage
5.2.2 The Portuguese Case-Law on the Immediacy Required at the Appeal Stage
5.3 Immediacy in the Appeal Stage: The ECHR and ECtHR Standard
5.4 The ECHR Standard in Portugal: The PCPP at a Crossroads
Cited Case-Law
References
Part III: Immediacy in Criminal Procedure Theory and Cognitive Sciences
Chapter 6: Immediacy at the First Instance Trial
6.1 The Immediacy Principle at Its Origins: Code d´Instruction Criminelle (1808)
6.1.1 The Immediacy Principle in Early European Criminal Procedure Codes
6.1.2 Final Remarks
6.2 The Evolution and Development of the Immediacy Principle Requirements
6.2.1 Variations to the Court´s Composition
6.2.2 Final Remarks
6.3 The Immediacy Principle: State of the Art According to ECtHR Case-Law
6.3.1 ECtHR Case-Law on the Immediacy Principle: Article 6(1) ECHR
6.3.2 ECtHR Case-Law on the Right to Examine Witnesses: Articles 6(1)(3)(d) ECHR
6.3.3 Final Remarks
Cited Case-Law
References
Chapter 7: Audio-Visual Recordings as Evidence in Criminal Procedure
7.1 Introduction
7.2 Hearsay and Recordings
7.3 Admission of Hearsay Evidence
7.3.1 Some Context
7.3.2 Inferences
7.3.3 What to Do with Hearsay Evidence When the First-Hand Witness Contradicts It or Refuses to Speak
7.4 Turning Back to Recordings
7.5 What About Appeals?
7.6 Conclusions
Cited Case-Law
References
Chapter 8: Neuroscience of Memory and Philosophy of Knowledge Challenges to Immediacy
8.1 The Epistemic Problem Regarding Immediacy in Criminal Appeal
8.2 Sources of Information vs Reliable Sources of Information
8.3 Reliability in Court
8.4 On the Reliability of Testimony: The Unreliability of Memory
8.5 On the Reliability of Perception: The Reliability of Recordings
8.6 Testimony: Believing Without Seeing
Bibliography
Chapter 9: AI Assistance in the Courtroom and Immediacy
9.1 Conceptual Definitions and Differentiations
9.2 Free Appreciation of Evidence, Legal and Human Reasoning and AI
9.3 Fairer and More Efficient Justice System?
9.4 Principle of Immediacy and the Right to a Fair Trial
9.5 Conclusions
Cited Case-Law
References
Part IV: Concluding Thoughts
Chapter 10: On the Legitimacy of the ECtHR´s Criminal Appeal Immediacy Requirement
10.1 A Comparative View on Criminal Appeal Immediacy Models
10.2 An Interdisciplinary Approach to Criminal Appeal Immediacy
10.3 Criminal Appeal Immediacy Beyond the ECtHR Case-Law: Fairness Guidelines for Criminal Appeal Law Interpretation and Reform
Cited Case-Law
References
