Right to a fair trial

Question 1

What is the scope of article 6?

Answer 1

1. To a civil right/obligation:
   - Autonomous meaning
   - All disputes under civil code
   - Test - Is there an effect on your financial/economic situation?
2. To criminal charges:
   - (i) Classified as criminal offense or
   - (ii) Essential nature of the offense and (iii) severity of the offense (must be retributive, not merely repairing)
3. Does not fall under article 6:
   - State matters
   - Public matters
   - Ex. taxes, regulations of elections, asylum seekers, high-ranking civil servants…

Question 2

What are the acceptable limitations to this right?

Answer 2

1. As long as necessary to pursue the legitimate aim
2. Does not destroy the essence of the right
3. Proportionality

Question 3

Right to an independent and impartial tribunal

Answer 3

1. Independent - Not controlled by the executive
2. Impartial:
   - Presumption of impartiality
   - Subjective - Any kind of personal bias
   - Objective - Check the safeguards, structure

Question 4

What happens if a judge is on a dual case?

Answer 4

Puolitaival and Pirttiaho v. Finland

1. Not simultaneously! Never!
2. Successively:
   - Nature and duration of the previous involvement
   - Existence of any prior involvement
   - Interest in the subject matter

Question 5

Access to court - A v. the UK

Answer 5

1. Legitimate aim - Independence of MPs, meaningful debate in Parliament
2. Proportionality?
   - Immunity is absolute for statement made in Parliament, not outside - In itself not incompatible with art. 6
   - Parliamentary immunity exists everywhere (or almost), there is consensus
   - Victims of defamation can also petition the Parliament through any MP
3. Conclusion:
   - Not disproportionate
   - MS did not overstep its MoA

Question 6

Access to court - Cordova v. Italy

Answer 6

1. Legitimate aim - Protection of free parliamentary debate, maintenance of trias politica:
2. Proportionality?
   - Lack of clear connection with a parliamentary activity - Cordova test
   - MP was not answerable to defamation
   - Disproportionate
   - No fair balance between general interests and individual rights
   - Bill made access to constitutional court impossible
3. Violation!