5. The right to a fair trial in civil cases under Article 6(1) Flashcards
What is art. 6(1)
The right to a fair trial in civil cases
What are the scope of art. 6 (1) in its civil limb
The concept of “civil rights and obligations” is an “autonomous” concept deriving from the Convention. Art. 6(1) applies irrespective of the parties’ status, the nature of the legislation governing the “dispute” (civil, commercial, administrative law etc.), and the nature of the authority with jurisdiction in the matter (ordinary court, administrative authority etc.).
The applicability of Art. 6(1) in civil matters firstly depends on the existence of a “dispute” (in French, “contestation”). Secondly, the dispute must relate to “rights and obligations” which, arguably at least, can be said to be recognised under domestic law. Lastly, these “rights and obligations” must be “civil” ones within the meaning of the Convention, although Art. 6 does not itself assign any specific content to them in the Contracting States’ legal systems
Civil rights and obligations
Ringeisen v Austria – Applicant (property speculator)
The test is whether the results of the proceedings were decisive for the relations in civil law and for private rights and obligations
ECtHR Held: it is not necessary that both parties be private persons. The character of the legislation which governs how the matter is to be determined (civil, administrative etc.) is of little consequence. Here, although the State was applying the rules of administrative law, the Commission’s decision was decisive for the relations in civil law. This makes Art 6(1) applicable! Since the Commission comprises a judge, civil servants and other interested bodies, it was a tribunal under Art 6(1)! Art 6(1) thus applies to ALL proceedings the result of which is decisive for private rights and obligations.
Following its judgment in the Ringeisen case, the Court has adopted an increasingly liberal interpretation of the concept of civil rights and obligations.
Civil rights and obligations
Konig v Germany
Konig v Germany – Medical licence taken away from applicant by state authority. ECtHR Held: Taking someone’s right to livelihood is nonetheless is an administrative action determining his civil rights, even though it is not a traditional private right.
Commentary: Austin: civil no longer means private. In the past, it was where a private person sues another private person!
What are the scope of art. 6 (1) in its civil limb
The “fourth instance” doctrine
• Many is complaining about the decisions reached by national courts in civil and criminal cases. Many of these are based on a fundamental misconception of the convention system. The court has no jurisdiction under article 6 to reopen national legal proceedings or to substitute its own findings of fact, or the application of national law to them, for the conclusions of national courts.
o The courts job under article 6 is to examine whether the proceedings, taken as a whole, were fair and complied with the safeguards of the convention.
o Not under article 6 whether the conviction was safe, the sentence appropriate , the award of damages in accordance with national law and so on.
• The court call the principle the “fourth instance” doctrine, because it it not to be seen as a third or fourth instance of appeal from national courts.
What are “civil rights and obligations”?
• The definition has been problematic.
• First it is clear that there must be a “right” (or an “obligation”).
• Secondly the right (or obligation) must exist under national law.
• Thirdly the right (or obligation) must be “civil” in nature and it is in connection with this aspect of the definition that the real difficulties arise.
o It covers civil litigation between private individuals relating to actions in tort, contract and family law. Also covers interim measures such as interlocutory judgments issued by civil courts.
o It is more difficult to determine whether article 6 (1) should apply also to disputes between individuals and the state rather than private law. For example, if the state expropriates my land, do I have the right to a court hearing? More on page 279.
• In CONCLUSION: then it can be seen that the expression “civil rights and obligations” has come to encompass many areas which are frequently regarded by national systems as part of public or administrative law. It is difficult to discern any consistent principle in the case-law. The lack of principle can make it difficult for the states to determine the extent of their obligations under article 6 (1).
does Questions relation to children taken into public care, the expropriation of property by public authorities and so an fall within the scope of article 6 ?(1)
yes
Right of access to court
• One of the rights which has been developed out of the provision of article 6 is the right of access to court for the determination of a particular civil issue. The detailed fair trial guarantees under article 6 would be useless, if it was not possible to start court proceedings in the first place.
The effectiveness of court proceedings
- Another aspect: that a final court judgment should be effective. This is true in criminal and civil cases.
- The non-execution of civil judgments appear to be an endemic problem in eastern Europe and there have been many violations of article 6.
- The right to effective court proceedings also entails that once a civil judgment or a criminal acquittal has become final and binding, there should be no risk of its being overturned.
The overall requirements of a fair hearing
There is an overriding requirement that the proceeding should be fair. A fair hearing can be considered only in the context of the proceedings as a whole - not in itself.
The overall requirements of a fair hearing
Procedural equality
• The concept of “equality of arms” = it requires a fair balance between the parties and applies to both civil and criminal cases.
o In the context of civil cases between private parties - equality of arms do not have to be absolute. There is no duty on the state, for example, to provide legal aid to an impecunious litigant to such a level as to bring him or her into total parity with a wealthy opponent. What matters is that the parties are offered a reasonable opportunity to present their case - including evidence.
o There is not a reasonable equality of arms between the parties in criminal cases. By the other the court found a violation of article 6 where the defend lawyer had to hang around for fifteen hours before he was given the change to plead his case in the early hours of the morning.
The overall requirements of a fair hearing
An adversarial process and disclosure of evidence
- There is a right to have an adversarial trial - this means the opportunity for the parties to have knowledge of and comment on the observations filed or evidence adduced by the other party.
- In both civil and criminal cases it is important, that relevant material is available to both parties.
- The entitlement to disclosure of relevant evidence is not, however, an absolute right. In criminal (and sometimes civil) proceedings there may be competing factors, such as national security, or the need to protect a witness and so on.
- In relation to the fourth instance doctrine, the court only examines the decision-making procedure to ensure that it complied, as far as possible with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused.
- Cases page 293.
The overall requirements of a fair hearing
A reasoned decision
• A reasoned decision, while not expressly requires by article 6, is implicit in the requirement of a fair hearing. If a court give some reasons, then the requirements of article 6 are satisfied. If for example, that an applicant were to show that the court had ignored a fundamental defence, then this would be sufficient to rebut the presumption of a fair hearing (= breach of article 6).
The overall requirements of a fair hearing
Appearance in person
• It depends on the nature of the proceedings whether a failure to allow the individual accused or civil litigant to attend in person will constitute a violation of article 6.
o General rule: accused persons should always be present at their trial. When a crucial importance, there is a right to be present during the hearing. The same in civil proceedings.
• In cases involving prisoners, the domestic authorities should consider whether the prisoner’s presence is necessary and if not give reasons for it.
The overall requirements of a fair hearing
Effective participation
- It is not, however, sufficient that the criminal defendant or civil party is present in court. He or she must, in addition, be able effectively to participate in the proceedings.
- About accused children - page 296.
