Course 16

Question 1

What is art. 6?

Answer 1

Article 6: right to a fair trial: one of the leading articles in the case law of the court with a huge amount of cases.

• Criminal limb and civil limb.
• Wide scope but not all things are that clear and there are still discussions on the fundamental issues.
• It has almost become a general principle of law, whenever somethings comes close to a procedure –> tempted to say art. 6 applies but it is more sophisticated.
• Art. 6 only applies whenever the dispute fits into 2 categories:
  
  • Dispute on the determination of civil rights and obligations
  • Dispute on the determination of a criminal charge
• There are proceedings and disputes that fall outside those 2 categories.

Question 2

What are the cumulative conditions to allow the application of art. 6 in civil cases?

Answer 2

1. There has to be a dispute over righs and obligations
   
   • ​​​​Discussion in a legal context between 2 or more parties. Could also be that there is no adversary: in the context of a disciplinary proceedings.
   • Dispute has to have a certain genuine and serious nature. This is related to the admissibility criteria = we are not going to Strasbourg to discuss disputes concernings issues without any real meaning (de minimis non curat praetor).
2. These rights have to be of civil nature:
   
   • Strasbourg has an autonomous meaning because we are dealing with 47 different legal orders = they use a sui generis approach.
   • It is not only about subjective rights (as in the Belgian order):
     
     • Dispute of an allowance in Italy given by an administrative authority who had discretionary power = not a subjective right but still a dispute on rights.
3. Rights or obligations as object of the dispute

Question 3

What is important for the autonomous interpretation of rights and obligations by Strasbourg?

Answer 3

• The autonomous interpretation cannot go that far, so it should not be interpreted that the Strasbourg court gies rights where in the national law, there are none.
  
  • Same logic as with the protection of power: the Strasbourg court is not going to confer new rights. They apply art. 6 to existing national situations. There already needs to ba at least an arguale claim, a reasonabe argument to be brought before the judge according to domestic law.
• Obligation is perhaps relevant to cases where disputes concerning professional ethics intervene. Obligations of a more disciplinary nature could be used there.
  
  • So there you see that the court is willing to apply art 6.

Question 4

What does the condition: “Rights or obligations as object of the dispute” mean?

Answer 4

Only two 2 scenarios that one could imagine:

1. Object of the dispute is precisely the rights and obligations: the existing could be at stake: one party is saying there is a right and the other says not at all. The dispute is on whether the right exist or not = discussion of subjective rights usually falls in art. 6.
2. Disputes on the interferences with those rights: often the case when there are administrative authorities involved:
   
   • Eg. expropriation: authorities come and take your house to build an appartment.
   • These are disputes not about the existence of the right, but more on the interference.
   • Also disputes about disciplinary sanctions.

There can already be a dispute before there is a lawsuit: questions is: does art. 6 apply to all stages. Hard to make general statements because what is decisive is often the precise and factual circumstances.

Question 5

How do we define the rights and obligations that are of a civil nature?

Answer 5

Very complex case law. 2 main approaches:

1. Look at the body involved: if it was a civil tribunal = civil case
2. Other approach: look at the nature of the dispute = decisive.
   
   • Eg. 2 parties discussing a contract = civil procedure.

But what if one of the parties is a state party, a public authority? Are we then automatically outside the scope of the civil obligation?

Question 6

Does private law or public law apply when there is a state authority involved?

Answer 6

• Depends on the state: in some states if a party goes/enters into a contract with a public authority = public law applies.
• In other states: ordinary civil law applies.
• This makes the discussion much more complicated, also the difference between administrative court vs. ordinary courts.
  
  • But if you take strong position the substantive approach: the relevant arguments to the discussion are not decisive because I’m going to look at what is really at stake, even if there are elements that go beyond civil law.
• Sometimes: need to look at what is most decisive: the civil law part or the public law part.

Question 7

What is excluded from art. 6?

Answer 7

1. Tax cases
2. Electoral rights: right to vote, right to stand for elections
3. Rights to enter the country, to stay, deportation of aliens, disputes on national issues
4. Cases on civil servants and specifically recruitment and termination = supreme administrative court: also excluded:
   
   • This is a bit harsh because it is was employer-employee then art. 6 would apply.
   • Case: Eskelin vs. Finland: opposite position

Question 8

What is the case Eskelin vs. Finland?

Answer 8

• Normally civil servants would be excluded from art. 6 but here the court takes the opposite: civil servants are covered by art. 6, unless there is is within the national domestic law cases are excluded that said there has to be a legal basis there has to be a legitimate reason it has to be in the interest of the state to exclude that and it must be compatible with the idea with the value of the rule of law.
• Very important shift.
• View prof: what would be the huge problem to just extend those rights to all kind of procedures? Why can’t states just extend the guarantees of a fair trial to tax disputes, what is the costs.

Question 9

Why does the scope of application first seem pretty straightforward but it is not of art. 6?

Answer 9

• Because of the differences of everyone coming from different legal backgrounds and also because the drafters hardly paid any attention to what they were exactly committing: things evolve in an organic way and suddenly there are discussions of terminology that no one exactly knows what is meant.

Question 10

What is a criminal charge?

Answer 10

• Core = classical criminal sanctions or charches = where public prosecutors intervene.
• But what about disciplinary procedures; administrative fines –> not technically criminal charges but all administrative sanctions:
  
  • Are they covered by art. 6?
• Again: court has an autonomous qualitification to avoid that a state could just not apply art. 6 = that would be too easy.

Question 11

What is the Engel case?

Answer 11

Case in 1976: Engel vs. the Netherlands: criteria are still used today “Engel test”:

1. How is the charge qualified under domestic law:
   
   • Is it a criminal charge = no discussion possible.
   • However, if according to the domestic legal system the charges are an administrative one or a disciplinary one, Article 6 can still apply but then because of the two other criteria that can be used and they do not have to be cumulatively used they can be alternative.
2. Nature of the offense = if is is the breach of a rule rather than a rule directed at a certain specific category of people = disciplinary. If it is broader, a more general = matter of crimina law.
   
   • If the cases concerning fact rules applying to the population will rather be an indication that the sanction is in its nature. Say if the sanction has as a clearly punitive and deterrent effect it may again be an indication of the criminal nature.
3. Degree of severity and sanction of the penalty: if it is high = criminal

Question 12

When does art. 6 start to apply?

Answer 12

French text: as soon as the criminal charge is being determined.

It certainly applies to the trial but the questions is: pretrial procedures or stages? Police investigation, judicial investigation, hearings auditions as well and so forth.

There has been an evolution: Salduz case.

Question 13

What is the Salduz case?

Answer 13

• Case concerning a young Turk in 2008: court decided that there was a problem with the fairness of his trial for he was not assisted by lawyers in the pretrial declaration to the police.
• Here it was stressed that the pretrial stage is covered by art. 6 and thus there needs to be a lawyer present assisting.
  
  • States realize that something has to change because of the change of the Strasbourg court. Before states tried to say that it only applied to the Turkish criminal system.
• Now there is something called: “Salduz permanentie”: when someone is arrested or when someone needs to go to the police, they will ask to have the assistance of a lawyer, you are entitled to have a lawyer and so on and so forth.
• So that changed a lot and then you see that all in all there is a lot of discussion on what if I am in one or two other police hearings and there was a problem with the assistance of a lawyer what does the consequences mean? Now the court tends to have a look at it in general and sees whether the general fairness of the procedure is not jeopardized.

Question 14

What is the case Beuze vs. Belgium?

Answer 14

• Grand Chamber Case: court says that they look at the general fairness of the procedure, but also sets out elements in the discussion to judge whether the defendant, whether the general fairness of the procedure is respected.
• In some situations, it will be accepted that there was no lawyer there for the pretrial stages but it is hard to see under which circumstances it will be accepted that the this absence of a lawyer does not have an impact on the fairness of the of the trial.
  
  • So states can better be on the safe side: grant a little bit more rights than be a little bit more restrictive.

Question 15

Until when does art. 6 apply?

Answer 15

Article 6 applies until a final decision has been taken.

Question 16

What does a fair trial imply?

Answer 16

• It implies the right to a court. it is striking that the right to obtain a decision by a court is not explicitly mentioned in art. 6 because not many states wanted to grand those rights.
  
  • However the Strasbourg Court set the right to a court into Article 6 and said that this was an element of the rule of law being one of the leading principles protected by the Convention.
• Golder Case: leading case in Strasbourg court:
  
  • Prisoner wants to bring a case to a court against a prison officer, but he is not given the right to the court. He is only allowed to when he is out or he has to petition the home secretary whether you are allowed to bring the case.
  • Here relying on the Vienna Convention, the court reads into Article 6 the right to a court and therefore the right to appear before a court is a fundamental right, which applies in criminal matters as well.

Question 17

When is the mere fact of appearing before the court already a violation?

Answer 17

• You could imagine cases where children were brought before the court, certainly in criminal matters = would be so traumatic for the people involved that it is a violation of fundamental rights.
• Children of 11 years old who were charged for murder on a younger boy and they were sentenced:
  
  • Court said that this was a violation of art. 6 because they could not understand but the underlying value of a fair trial = access to court.

Question 18

What are the 3 important aspects of art. 6?

Answer 18

1. Right of access to a court
2. Right of the judicial determination of the dispute or criminal charge
3. Respect for the final findings

Question 19

What is the right to access to a court?

Answer 19

• This is about the idea that the court are available, there is the availability of the court: there has to be a court that has a function, that is to adjudicate = dispute on civil rights and obligations or in criminal charge.
• Follows from the Golder judgements: citizens are in principle entitled to have a direct access to that court, they can start their claim (slightly different in criminal charges). Independently should be allowed to start proceedings.
  
  • Problem when you are restricting the rights of certain categories.
• Access has to be effective: if you should not have the means to go to court, there should be a system of legal aid = pro deo.
• Also implies that states need to have procedural rules that are sufficiently clear and understandable. Also within a reasonable time limit.

Question 20

What are the limitations to the right to access to a court?

Answer 20

• The whole system is based on positive obligations by the state = related to the scarcity of means so there have to be limits.
• A proven minimum rule could apply: respect of the de minimis rule.
• There can be formal limitations or substantive limitations but they may never touch upon the core of rights:
  
  • So you restrict the actions of individuals, fair enough, but you can never go to the very essence of the rights in itself. And of course if you restrict, it has to be with legitimate aim, a reasonable link of proportionality and there has to be of course a legal basis.
• Eg. someone who is completely incapacitated = can only go to court through a guardian: . That is a limitation, but it can be justified. But then of course, given that position of a guardian, there should be the result of fair procedures.

Question 21

What is the case Erabliere against Belgium?

Answer 21

• Case on excessive formalism of the proceedings before the Council of State. And the court found, the Strasbourg Court found that in the rules of procedure concerning precisely the way applications for the council of state were filed they were excessive. And so states can be formed, but they can’t be excessively formalistic.

Question 22

What about inadmissibility criteria?

Answer 22

• Inadmissibility criteria are in se not problematic. There are criteria such as parliamentary immunity. There is the immunity of foreign States and so on and so forth, but as is often the case there are exceptions to rights, but there are not blanco-checks, you’re not entitled to do whatever. You can restrict, but you have to be careful.

Question 23

Does the judge have to make a decision?

Answer 23

• Obvious one: the court is there to determine the pending case, the dispute that is pending = expresses itself on both points of law and factual points. Otherwise it is denial of justice (see discussion on activitist judges)
• Judges might have to take a position where they are a bit uncomfortable or rather vague: also not a politician: eg. climate change cases
  
  • Either the judge dismisses the complaints = siding with state powers
  • Or pick up the case = accused of being activist judges
• Since we do not have a clear theory and system of political doctrine, political issue cases, where a judge could say “I’m not picking up this case for this is a political issue and not a judicial issue”, he or she would be guilty of denial of justice if the cases would not be treated.

Question 24

What is the power of decision?

Answer 24

• The judge comes up with a decision and determines the dispute: findings are binding.
• Appeal is often possible but then there is another judge = also binding.
• Important: they cannot be overruled as was the case in some communist countries = courts have the last word.

Question 25

How do we handle adjudication by non-judicial organs?

Answer 25

• Mixed jurisdiction: are people allowed to challenge the findings of that committee or commissions = non-judicial bodies.
• There should be an appeal possible with full jurisdiction = complex notion under comparative perspective under art. 6 = the tradition tribunal or the place where the decision is challenged, that it is able to go into the legal and the factual points. So it can do a judicial review of those points

Question 26

What is the right to respect the final decision?

Answer 26

• There should be respect for the final findings, the final determination by a court: again this idea that judgements cannot be altered (except material decisions).
• Here idea of legal certainty and when there is no appeal possible: the decision becomes final.
• Without interference from political pressure: a political pressure on courts to change there the judgments.

Question 27

What is the execution of judgements?

Answer 27

• Execution is an inherent part of a fair trial because otherwise it would be pointless to win. This also applies to administrative cases, disciplinary cases = idea of the rule of law.
  
  • And even if public authorities of course should be left or should be recognized it kind of choice, and suitable to opt and to prefer a suitable means of execution, they have to execute.
• Everything that applies to the court case itself holds true for the execution of judgments of the Strasbourg court holds true for the for the execution of domestic judgments.
• You should reasonable time for the public authorities, they have some leeway but they should execute.
  
  • Eg. people were bared from exercising a profession in an unlawful way = should be reinstated, permits should be allowed.
• Horizontal disputes: the public authorities are not involved but they should make sure that the whole part of the execution of judgements in your civil procedure code are possible: eg. if your landlord does not do that = obligation for the state to develop a system that allows you to in the end obtain what you were entitled to, and what has been determined by judges.

Question 28

What are structural requirements for a case?

Answer 28

1. Tribunal should be established by law
2. Independent and impartial
3. Publicity
4. Fair hearing
5. Reasonable time

Question 29

What does it mean that a court has to be established by law?

Answer 29

• There has to be specific procedure and rules on who can sit on the bench, constitutions usually holds this, but also specific ruleson judges.
• There has to be a legal basis for the tribunal and that law should also indicate : what is the competence, what is the composition ?

Question 30

What does “independent and impartial” mean?

Answer 30

• We do not want judges to be under political pressure to determine claims on criminal charges: we want separation of powers, independent and impartial courts.
• Independence: members and courts have to decide according to their own conscious: no pressure, they assess on the basis of the facts and on the basis of the law, as they understand it. Without being influenced by ideas “what would be the most suitable outcome”, “who could I do a favor?”, fear for political consequences and so on.
  
  • Only decide on what matters and so you are independent vis-à-vis, and that’s what has to be guaranteed, the parliament, independent vis-a-vis the governance, the media
• In some states: restrictions on reporting in the media on judicial cases – to protect the impartiality of the judges.
• Also obligation for judges: they should be independent from others: They themselves should avoid entering in such a relationship that in the end they become vulnerable to pressure by others. It could be corruption, more subtle corruption which can be discrete pressure and so on. That independence can be guaranteed through constitutional guarantees, legal guarantees – what we would call a strong legal statute.
  
  • It is not personal privilege to the judge = it is protection of the essential function of judging even though there might be individuals who abuse it.