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In a recent case of outrage in Italy against Hungary:

Andras Kadar of the Helsinki Committee told the BBC that although Hungarian prison authorities "routinely use physical restraints when presenting detained defendants before the court... this is not only a breach of domestic legal principles, but is also in violation of the standards of the European Court of Human Rights."

But why is that a "violation of the standards of the European Court of Human Rights" to have someone restrained in court? (Did the ECtHR pass some ruling on this?)

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  • A number of press reports used the sentence "being led into court on Monday with her feet and hands bound and a chain round her waist". Was that only a transport measure, the shackles being removed during the court session? This video seems to prove not all restraints were removed after she was lead to her seat. What can be made out is that one of the two handcuffs she was wearing on arrival (the one connecting to the waist chain?) was no longer present later.
    – ccprog
    Jan 31 at 13:44
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    A note to add some context: this case achieved much publicity because the defendant is a member of a violent extremist movement (there are motions in the EU parliament to declare them a terrorist organization), and is in court for assaulting passers-by on the street. But as she is a member of a left-extremist movement, many leftist political parties and organizations try to portray her as a martyr, and this can cause many sensationalist headlines. The Helsinki Committee is also taking a strong side in Hungarian politics, so it's no wonder they stir it up even further.
    – vsz
    Jan 31 at 15:43
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    The question is phrased as though the court is declaring the use of restraints to be a violation. But I think it could reasonably be read as referring only to the routine use of restraints. Jan 31 at 17:20
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    @vsz The defendant is accused of membership in a criminal organisation, together with three counts of "conspiracy to commit assault causing grievous bodily harm". The other two defendants only face membership charges. As some answers have pointed out, presenting a defendant (who pleads not guilty) as if her guilt was already evident is at the heart of this discussion. Believe me, I have no sympathies at all for the perpetrators of the violent attacks, but for now it has not been proven she was one of them.
    – ccprog
    Jan 31 at 17:46
  • Also note that the Helsinki Committee has a very long history of fighting against using such restraints, not just in this particular case -- this will influence their argumentation. Also, but this is of course not a legal argument, just anecdotal opinion, the general sentiment in Hungary seems to hold nothing against using restraints in court in the case of violent criminals, it's considered just an obvious safety measure. White collar perpetrators are certainly different.
    – Gábor
    Feb 1 at 12:19

4 Answers 4

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It may be less of a concern in a civil law system with a panel of judges instead of jury, but the appearance of the defendant is important. If the defendant looks like a criminal the jury may be influenced to assume that they are a criminal. This is why you will see defendants appearing in suits that they surely never normally wear.

Most of the sources I can find relate to the wearing of civilian clothing, but I hope you can see the connection. The effect of shackling a prisoner is the same as the effect of them appearing in prison clothing.

In the US, this was tested in Estelle v. Williams:

The defendant has a right to appear in civilian clothing (instead of a prison or jail uniform) to avoid the risk that the jury’s judgment will be tainted and the defendant’s right to a presumption of innocence will be compromised. See Estelle v. Williams, 425 U.S. 501 (1976) (“the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes”) (Source)

In the UK this is given by the Prison Rules 1999, section 40:

A prisoner required to be taken in custody to any court shall, when he appears before the court, wear his own clothing or ordinary civilian clothing provided by the governor. (source)

And this is confirmed by the Council of Ministers in the EU for uniform prison rules:

If they have no suitable clothing of their own, untried prisoners shall be provided with civilian clothing in good condition in which to appear in court or on authorised outings. (source)

Moreover the Council of Europe rules also require that "irons" may be used during prisoner transfer

provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise;

So, there may be situations in which it becomes necessary to shackle a prisoner in court: if they become a threat to the safety or dignity of the court. But as per the sources above, this should not be done regularly or in unexceptional cases.

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    Hungary and most other European countries (Italy included) don't have jury trials though. Jan 31 at 1:13
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    Also Rule 39 in the Council of Ministers recommendations says something more explicit about restraints: "provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise". Jan 31 at 1:27
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    Prisons have govenors. The principal prison officer is called the Prison Governor .
    – James K
    Jan 31 at 7:29
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    Judges are not neutral law robots either.
    – Lag
    Jan 31 at 7:34
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    Nitpick: the UK legislation is from a statutory instrument, not an act of parliament; the SI is simply called "The Prison Rules 1999". Jan 31 at 9:46
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There are numerous jurisdictions that have rules against defendants being routinely shackled and (as in James K's answer) one of the reasons is that it may introduce bias in the judge and/or jury. Here are other reasons.

Confining or restraining the defendant such that he is prevented from taking notes, handling documents or having confidential exchanges with his lawyer may impinge on his ability to effectively participate in the proceedings and to receive practical and effective legal assistance, in contravention of Article 6 (European Convention of Human Rights), the right to a fair trial.

The circumstances may be such that they amount to inhuman or degrading treatment contrary to Article 3 or a serious humiliation of the defendant, contravening Article 8, right to respect for private and family life.

It is not sufficient to say "we routinely confine or restrain all defendants in this way." For such restrictive measures to be lawful with regard to a specific defendant, there must be a good reason to take that approach with that defendant.

The court must choose the appropriate security arrangement for the defendant, in particular taking into account the presumption of innocence, equality of arms, the requirements of a fair hearing and the appearance of having a fair hearing.

Reference: European Court of Human Rights Guide on the case-law of the European Convention on Human Rights. Specifically section VIII. Prisoners’ rights in judicial proceedings, subsection B Effective participation in domestic judicial proceedings; and section V Good order in prison, subsection B Use of instruments of restraint. Quotes with example cases:

  1. Detained, transported and confined at the courthouse in extremely cramped conditions, where he was subjected to such overcrowding that he could not read or write, and where he did not have adequate access to natural light and air or appropriate catering arrangements ... (Moiseyev v. Russia, 2008, § 222)

  2. Moreover, measures of confinement of prisoners in the courtroom may affect the fairness of a hearing guaranteed by Article 6 of the Convention, in particular they may have an impact on the exercise of an accused’s rights to participate effectively in the proceedings and to receive practical and effective legal assistance (Svinarenko and Slyadnev v. Russia [GC], 2014, § 134, with further references). It is therefore incumbent on the domestic courts to choose the most appropriate security arrangement for a given case, taking into account the interests of administration of justice, the appearance of the proceedings as fair, and the presumption of innocence; they must at the same time secure the rights of the accused to participate effectively in the proceedings and to receive practical and effective legal assistance (Yaroslav Belousov v. Russia, 2016, § 152).

  1. Measures of restraint such as handcuffing do not normally give rise to an issue under Article 3 of the Convention where they have been imposed in connection with lawful arrest or detention and do not entail the use of force, or public exposure, exceeding what is reasonably considered necessary in the circumstances. In this regard, it is of importance, for instance, whether there is reason to believe that the person concerned would resist arrest or try to abscond or cause injury or damage or suppress evidence (Svinarenko and Slyadnev v. Russia [GC], 2014, § 117, with further references). The Court has also held on many occasions that handcuffing or shackling of an ill or otherwise weak person is disproportionate to the requirements of security and implies an unjustifiable humiliation, whether or not intentional (Korneykova and Korneykov v. Ukraine, 2016, § 111, with further references).

  2. Furthermore, the Court has recognised that the aspects of moral and physical integrity of a person, as part of the concept of private life under Article 8 of the Convention, extend to situations of deprivation of liberty, including the use of measures of restraint. However, the use of measures of restraint such as the handcuffing must affect a prisoner physically or mentally or must be aimed at humiliating him or her in order for an issue to arise under Article 8 (Raninen v. Finland, 1997, §§ 63-64).

  3. ... the Court has found, for instance, that no justification for the use of handcuffs or shackles existed in the following circumstances: ... handcuffing during court hearings (Gorodnichev v. Russia, 2007, §§ 103-109); [contrary to Article 3] ...

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    In re 188: I guess Hungary can fix that by bringing out the cages that Russia uses nowadays for defendants. Jan 31 at 11:26
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    Quote: "189. It should also be noted that the Court has found that holding a person in a metal cage during a trial – having regard to its objectively degrading nature, which is incompatible with the standards of civilised behaviour that are the hallmark of a democratic society – constitutes in itself an affront to human dignity in breach of Article 3 of the Convention (Svinarenko and Slyadnev v. Russia [GC], 2014, § 138; Korban v. Ukraine, 2019, § 134)."
    – Lag
    Jan 31 at 11:27
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    Bummer. But they have plexiglass cages now. Jan 31 at 11:28
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    Quote: "In Yaroslav Belousov v. Russia, 2016, §§ 151-153, placement of an accused in a glass cabin in the courtroom, which was applied as a matter of routine, prevented him from having confidential exchanges with his lawyer and to handle documents or take notes. As this situation was not recognised and addressed by the relevant court, the Court found a violation of Article 6 §§ 1 and 3 (b) and (c) of the Convention."
    – Lag
    Jan 31 at 11:30
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    So, of course Russia had to leave the ECHR. Nothing Russia does makes the ECHR happy... /s Jan 31 at 11:31
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My apologies for not answering the question itself, but it might be appropriate to explain the Italian view on the use of handcuffs a bit. Italian Wikipedia explains:

In the Italian Code of Criminal Procedure there are no provisions in this regard, however their use is provided for in some typical cases provided for by law, such as in accordance with the provisions of Law no. 354 of 26 July 1975 ["Rules on the Prison Order and on the Execution of Measures for the Deprivation and Limitation of Liberty"], as amended by Law no. 492 of 12 December 1992; which in Article 42 bis ["Transfers"] paragraph 5 provides:

"In individual transfers the use of handcuffs on the wrists is compulsory when the dangerousness of the subject or the danger of escape or environmental circumstances that make transfer difficult require it. In all other cases, the use of handcuffs or any other means of physical coercion is prohibited. In the case of individual transfers of prisoners or internees, the assessment of the dangerousness of the subject or of the danger of escape is carried out, when ordering the transfer, by the judicial authority or by the competent prison management, which dictate the consequent prescriptions."

Ministry of Justice Circular No. 558 of 8 April 1993 specified that it is up to the authority carrying out the transfer to verify the recurrence of the above-mentioned conditions legitimising the use of handcuffs on the wrists. In the event of any unjustified use of handcuffs, the offence of abuse of authority against arrestees, provided for and punished by Article 608 (abuse of authority against arrestees or detainees) of the Italian Criminal Code, is committed.

Italian newspapers and media are forbidden to show accused in shackles. From a ruling by the "Garante" (per la protezione dei dati personali, State office for the protection of personal data):

The Garante recalled that in the activity of journalism, the processing of data, and their dissemination, is allowed as long as it does not exceed the limit of what is essential information concerning facts of public interest, and that the journalist who processes such personal data is obliged not to provide news or publish images that may be harmful to the dignity of the person.

The Garante also referred to the rule contained in the Code of Criminal Procedure, which prohibits 'the publication of the image of a person deprived of his or her personal liberty filmed while being subjected to the use of handcuffs or other means of physical coercion, unless the person consents'. [Article 114 paragraph 6-bis]

But as the BBC reports, Italian media did share images of the accused in shackles. On could speculate that they could do so legally only if this was an essential part of the information and concerned facts of public interest: for example when the fact that she was restrained was a scandal itself...

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In several case, use of shackles has been considered under Article 3 of the European Convention on Human Rights (ECHR) (degrading treatment), but I am unable to find any European Court of Human Rights case law that has found that use of shackles for court security is "degrading treatment". There is case law about the use of cages in courtAMISHVILI AND KOKHREIDZE v. GEORGIA, and from the general treatment of the ECHR by the Court, it is clear that the use of shackles must be proportionate and justified.

Article 6.2 of the ECHR provides for the "presumption of innocence". The European Court of Human Rights has indicated that actions which affect jury perception may violate the right to "presumption of innocence", and has indicated that court security measures may violate the right to "presumption of innocence" in that way. There is some discussion in SIMON PRICE v. THE UNITED KINGDOM, again, it is clear that the use of security measures must be proportionate and justified.
However, the routine use of security measures diminishes their significance: if everybody is shackled all the time, that may be meaningless and have no effect on the presumption of innocence. There is some case law which I'll find if I have the time.

Article 6.1 of the European Convention on Human Rights (ECHR) provides for "a fair and public hearing", which is often referred to as "a fair trial", but in this context that is very misleading and confusing: the Article 6.1 "fair hearing" is only one specific part of the right to a "fair trial". The idea of a "fair trial" is often held to include the (qualified) right to appear unshackled, but I am unable to find any support for the idea that European Court of Human Rights has determined that the use of shackles specifically violates section 1 of Article 6.

Given the case law on the use of cages in court, and with reference to Italian court practice, it is very possible that the European Court of Human Rights would find that use of shackles in a court in Italy would violate both Article 3 and Article 6: degrading and tending to lead to a miscarriage of justice, but that the proportionate and justified used of shackles in an English or Russian court would not violate the ECHR.

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