Legal Articles for the Right to a Fair Trial

Question 1

Article 6, ECHR

Answer 1

right to a fair trial

• entitled to a fair/public hearing within a reasonable time by an independent/impartial tribunal established by law
• additional protection in criminal matters (presumption of innocence until conviction)

applicability depends on civil/criminal matters

civil matters

• need “genuine and serious dispute” with a decisive outcome, the existence of an arguable right or obligation in domestic law, “civil” nature of the right/obligation
• does not include matters like tax proceedings, immigration fields, disputes relating to public servants and political cases

criminal matters

• need the existence of a “charge” and the “criminal” nature of a charge
• does not include disciplinary proceedings, tax proceedings, political issues, expulsion/extradition, proceedings concerning the execution of sentences

Question 2

Article 5, ECHR

Answer 2

right to liberty and security

only limited cases where the state is allowed to deprive you of liberty/security

needs to be a procedure prescribed by law (e.g. criminal charges being processed, illegal entry into the country, etc.)

only applies if there is a deprivation of liberty (not necessarily liberty of movement)

Question 3

Article 13, ECHR

Answer 3

right to an effective remedy

does not have the same scope as Article 6
- Article 6 is applicable as long as you have a right recognised under domestic law, whereas 13 is conditioned by the fact that you have a right under the convention

does not give you the right to a fair trial but only an effective remedy before national authority

need an arguable claim so it can only be applied in combination or in light of one or more articles of the convention

scrutiny of court changes depending on the complaint (stricter with right to life, prohibition of torture/degrading treatment, right to a lawful arrest or detention, etc.)
- also depends on whether it is a negative obligation and if the state did something that violated your right

Question 4

14th amendment, US

Answer 4

due process clause
- provides that no state shall deprive any person of life, liberty or property without due process of law

due process applies to the state because a lot of provisions of the first 8 amendments of the bill of rights contain provisions necessary for due process
- doesn’t apply to the state because of the bill of rights itself but because it is necessary for due process

Question 5

Declaration of 1789, France

Answer 5

Article 8 or 9 about criminal detentions
- no reference to a judge/court

Article 17 about the right to property, but not enough

Question 6

Article 64, French Constitution

Answer 6

independence of judicial authority

Question 7

Article 66, French Constitution

Answer 7

cannot be arbitrarily detained

judicial authority as the guardian of the freedom of the individual

• fact that there is no deprivation of liberty without being presented to a judge of the judicial authority
• applied in the same way as Article 5 in the ECHR

Question 8

Article 66-1, French Constitution

Answer 8

no one seated to death

Question 9

Article 61-1, French Constitution

Answer 9

ability to ask for a QPC in any case

Question 10

Article 62, French Constitution

Answer 10

ruling of the CC applies to all courts/authorities

Question 11

Article 16, Declaration of 1789

Answer 11

CC interpretation in 1996 that you have a guaranteed right to access the court and several other rights pertaining to the right to a fair trial

no substantial constraints on your right to access a court

does not have grounds beyond the CC’s interpretation