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Article 6 European Convention on Human Rights - Right to a fair trial

Article 6
 
"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 
 
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 
 
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; 
(b) to have adequate time and facilities for the preparation of his defence; 
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; 
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; 
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court."
 
 
 
 

Criminal proceedings

 
 
 
The key principle governing Art 6 is fairness:
 
 
 
Gregacevic v Croatia [2012] ECHR 1566      Case summary
 
 
 
 
What counts as a fair trial depends on the circumstances of the case:
 
 
 
 
Ibrahim & Ors v UK [2014] ECHR 1444        Case summary
 
 
 
Cumulative effect of several procedural defects can be taken into account even if each on their own would not amount to a finding of unfairness: 
 
 
 
Miralashvili v Russia [2008] ECHR 1669         Case summary
 
 
 
The general requirement of fairness applies to all criminal offences including minor offences
 
 
 

Buliga v Romania [2021] ECHR 136 
 
 
 

Criminal "Charge"

 
 
 
"Charge" includes:
 
 
A person who has been formally charged with a criminal offence Pelissier & Sassi v France 25444/94 
 
 
A person arrested on suspicion of having committed a criminal offence Heaney & McGuiness v Ireland 33 EHRR 264
 
 
A suspect being questioned about involvement in acts constituting a criminal offence Aleksandr Zaichenko v Russia [2010] ECHR 185
 
 
 
Criminal 
 
 
To determine the criminal aspect of Art6, the courts look at three criteria identified in Engel & Ors v the Netherlands [1976] ECHR 8:
 
 
1. Classification in domestic law
 
2. Nature of the offence
 
3. Severity of the penalty
 
 
1. Classification in domestic law
 
If the domestic law classifies an offence as criminal that is decisive. If the domestic law does not classify it as criminal, the court will look beyond the national classification to determine the reality of the procedure:
 
 
 
 
2.Nature of the offence
 
 
The following factors are considered:
 
Whether the legal rule is directed at a specific group or applies to all:
 
 
Bendenoun v France [1994] ECHR 7
 
 
Whether it is prosecuted by a public body with statutory powers of enforcement:
 
 
Benham v UK [1996] ECHR 22 
 
 
Whether the legal rule has a punitive or deterrent purpose:
 
 
Ozturk v Germany [1984] ECHR 
 
 
Whether the legal rule seeks to protect the general interest of society that is normally protected by the criminal law:
 
 
 
 
Whether the imposition of a penalty is dependent on a finding of guilt:
 
 
Benham v UK [1996] ECHR 22 
 
 
How comparable provisions are classified in other member states:
 
 
Ozturk v Germany [1984] ECHR 
 
 
3. Severity of the penalty
 
This is determined by looking at the maximum penalty imposed for the offence:
 
 
Campbell & Fell v UK [1984] ECHR 8 
 
 
The fact that it is not punishable by prison is not decisive:
 
 
 
 
 
Extradition proceedings for the deportation of aliens does not count as criminal proceedings:
 
 
 
Maaouia v France [2000] ECHR 455
 
 
 
Measures taken for prevention of disorder or crime are not criminal proceedings:
 
 
 
Raimondo v Italy [1994] ECHR 3 
 
 
 
Right to a hearing


The right to a hearing is not absolute but subject to limitations:
 
 
 
Deweer v Belgium [1980] ECHR 1
 
 
 
Limitations must pursue a legitimate aim and be proportionate:
 
 
 
Omar v France [1998] ECHR 63
 
 
 
Parliamentary immunity is a legitimate aim:
 
 
 
Kart v Turkey [2009] ECHR 1981
 
 
 
 
Independent and impartial tribunal


The concepts of independence and impartiality apply equally to judges, lay judges and jurors:
 
 
 
Holm v Sweden [1993] ECHR 58
 
 
Independence includes independence from the executive, legislature and parties in the case:
 
 
Ninn-Hansen v Denmark [1999] ECHR 
 
 
 
 
Findlay v UK [1997] ECHR 8  In determining if a tribunal is independent the court has regard to:
 
  • The manner of appointment
  • Duration of term of office
  • Existence of guarantees from outside pressures
  • Whether the body appears to be independent
 
A subjective and objective approach is adopted in assessing impartiality:
 
 
 
Grieves v UK [2003] ECHR 688
 
 
Subjective approach - there is a presumption of impartiality unless the contrary is proved:
 
 
Hauschildt v Denmark [1989] ECHR 7
 
 
 
Objective approach - are there ascertainable facts that may raise doubts as to the impartiality:
 
 
 
Castillo Algar v Spain [1998] ECHR 99
 
 
 
Where there are concerns over links between the judge and others involved in the proceedings, it must be decided whether the relationship in question is of such a nature and degree to indicate lack of impartiality:
 
 
Pullar v UK [1996] ECHR 23
 
 
 
Fairness
 
Effective participation in trial
 
 
Art 6 guarantees a right of an accused to participate effectively in a criminal trial:
 
 
Murtazaliyeva v Russia [2018] ECHR 1947
 
 
The needs of juveniles should be accommodated in the proceedings:
 
 
V v UK [1999] ECHR 171
 
 
Blokhin v Russia [2013] ECHR 1132
 
 
 
Any measures restricting the defendant's participation in the proceedings should be necessary and proportionate:
 
 
 
 
Equality of arms p35
 
 
Each party to proceedings is to be given a reasonable opportunity to present their case under conditions that do not disadvantage them:
 
 
Ocalan v Turkey [2003] ECHR 125