Right to a fair trial under Art. 6 (civil limb)

Question 1

What subsection of Art. 6 is applicable to civil cases?

Answer 1

Only §1

Entire Art. 6 is applicable to criminal cases

Question 2

When is Art. 6 (civil limb) applicable?

Answer 2

When there is an actual dispute (non - hypothetical) where someone is entitled to something (right) or obligated to do something (obligation)

Question 3

What can the dispute be about?

Answer 3

• Existence of right/obligation
• Scope and manner of right/obligation
• Question of fact
• Question of law (jus)

Question 4

Is Art. 6 an substantive or procedural provision?

Answer 4

Art. 6 is a procedural provision that contains a list of procedural safeguards.

It does not impose a specific model of how such proceedings should be, due to ECHR applying in both civil and common law systems, but requires that the safeguards have been respected

Question 5

Does Art. 6 have any bearing on substantive law?

Answer 5

No, it does not.

It cannot be used to claim that the content of a national law is unfair, but only to claim that procedures governing a given adjudication process have rendered it unfair

Question 6

Can Art. 6 be used to rectify alleged errors in domestic courts decisions?

Answer 6

Almost never, but it’s possible in the most extreme cases (very much the exception)

Question 7

Case where the Court has used Art. 6 to intervene in domestic courts decision?

Answer 7

Khamidov v Russia
Concerned the destruction of applicants property by police.
The Court will only intervene in the domestic courts decision, if its decision appear arbitrary or manifestly ill - founded.
In this case the Court found that all evidence pointed to the opposite result than what the court had ruled and that the decision amounted to an “arbitrary exercise of judicial power” and that it had set an unattainable standard of proof for the applicant.
The Court therefore found reason to intervene

Question 8

What can’t Art. 6 be used for?

Answer 8

• Reopening national proceedings
• Substitute the domestic courts findings for that of the Court
• Reinterpret national law

Question 9

How does the principle of subsidiarity influence Art. 6?

Answer 9

ECtHR is not a court of appeal and the case before the Court is a brand new case

Art. 6 does not concern itself with the outcome of the domestic trial, but can be used to determine whether the proceedings were fair (if the procedural safeguards were met)

Question 10

What are tiers of proceedings?

Answer 10

Art. 6 allows for proceedings to be conducted before an administrative body where procedures do NOT comply with the article, if the outcome of such proceedings are then subject to judicial review before a body that DOES meet Art. 6 requirements

This also presupposes that the superior body conducts a sufficient scope of review of the case!

Question 11

What proceedings are protected by Art. 6 (civil limb)?

Answer 11

Proceedings determining civil rights or obligations, i.e., pecuniary matters

Question 12

What kind of disputes does Art. 6 (civil limb) apply to?

Answer 12

All civil suits between individuals
- e.g., tort disputes, contractual disputes, employment disputes, family disputes

Most disputes between a private individual and a government agency (administrative disputes)

• Pecuniary disputes (expropriation, planning decisions, alcohol licensing, suspension of medical or legal practice, welfare benefits ect.)
• Disputes concerning civil rights in their most basic form (right to family, right to life, right education, freedom rights ect.)

Question 13

What kind of disputes are excluded from Art. 6?

Answer 13

Disputes flowing from traditionally recognized sovereign prerogatives of the State

• tax disputes
• immigration disputes
• nationality entitlement

Question 14

What are the explicit rights stated in Art. 6, §1?

Answer 14

• Independent and impartial tribunal
• Public hearing
• Public judgement
• Judgement within a reasonable time

Question 15

What are the implicit rights read into Art. 6, §1 by the Court?

Answer 15

• Access to court
• Effectiveness of proceedings
• General fairness of proceedings

Question 16

In what case did the Court state that Art. 6 entails a right to access to court?

Answer 16

Court has recognized this as the most basic of the rights in Art. 6, as the other rights in the provision presupposes that there is access to a court

Golder v UK
Prisoner was wrongfully accused of assaulting a prison guard during disturbances in the prison. The applicant wanted to bring proceedings for defamation against the prison in order to clear his name, but Prison Rules did not allow it.
The Court held that in order to benefit from the other guarantees in Art. 6 you have to be able to bring you’re claim before a judicial body - otherwise the other rights would be rendered illusionary

Question 17

Does “access to court” guarantee legal aid in civil cases?

Answer 17

No, §1 does not guarantee legal aid as a general rule

However, if lack of legal assistance means that the access to court is rendered ineffective, Art. 6 will require the State to provide legal aid

Question 18

Rules regarding legal aid in civil cases?

Answer 18

Legal aid is not an aim in itself, but can be necessary in order to ensure an effective access to court

Since legal aid is not a right in itself, the purpose can also be met by simplifying procedures, so that legal aid is not needed

Question 19

Does both defendant and plaintiff have a right to legal aid in those cases?

Answer 19

No, the opportunity mainly only exists for the defendant

Not a traditional criminal case lawyer, who works full time, but might just be a single consultation in order for the defendant to be able to participate effectively in proceedings

Question 20

Are there any limitations of the access to court?

Answer 20

Yes, following requirements do not infringe the right:

• formal requirements
• requirement to attempt reaching a settlement before starting a litigation
• time limitations
• no cause of action
• recognized immunities

Question 21

What does the requirement of “effectiveness of proceedings entail”?

Answer 21

Effectiveness of proceedings presupposes that the outcome is enforceable

Question 22

What does “general fairness of proceedings” entail?

Answer 22

The fairness of proceedings is judged as a whole, which is why the proceedings can be deemed fair even though not all requirements are met

Question 23

What are the recognized rights under the guarantee of “general fairness of proceedings”?

Answer 23

1) Appearance in person
2) Equality of arms
3) Adversarial nature of proceedings
4) Issuance of reasoned judgement
5) Res judicata

Question 24

What does “appearance in person” entail?

Answer 24

Presence is not the aim itself - the aim is to be able to contradict claims against you

Requirement can therefore often be fulfilled with the presence of an attorney

Question 25

What does “equality of arms” entail?

Answer 25

Important in civil cases, crucial in criminal cases

Requires a balanced relationship between the parties, i.e., equal rights of calling witnesses, equal rights of attendance, equal access to evidence ect.

Question 26

What does “adversarial nature of proceedings” mean?

Answer 26

Right to comment on opposing party’s claims

Question 27

What does “issuance of a reasoned judgement” entail?

Answer 27

Courts are not obligated to address every single point raised in the case, but must address each line of defense and ground of appeal

Question 28

What does “res judicata” mean?

Answer 28

Judgements are final after a certain period of time - right to legal certainty

Time limits on possibility to appeal is a requirement

Question 29

What does “independent and impartial tribunal established by law” entail?

Answer 29

Independence = concerns the entire structure of the body

• the courts must be independent from other branches of government
• independence does not relate to the individual judges

Impartiality = concerns the bias of the judges

• the judges must not be biased against one of the parties
• relates to the individual judge and can therefore be fixed by switching out the biased judge

Tribunal = body able to produce legally binding decisions and Government must be legally mandated to implement tribunals decision

Established by law = overall structure and function of the body must be regulated by law

Question 30

How is “independence” asserted?

Answer 30

• Manner of appointment
• Duration of office, either fixed term of for life (crucial that a judge cannot be threatened with termination)
• Protection against outside influence
• Appearances of independence

Question 31

How is “impartiality” asserted?

Answer 31

Either through and “objective” or “subjective test

Objective test

• asserts impartiality through how it looks to an objective observer
• requires no factual evidence that the judge is in fact impartial, it just has to look that way

Subjective test
- requires actual evidence that the judge has acted with personal prejudice against the applicant in the case

Hauschildt v Denmark. Judge had decided to detain the applicant pre - trial and was also adjudicating the trial. Problem was that the burden of proof for the pre - trial detention was the same as the one required for a criminal conviction, so the judge had effectively already taken a stance on whether the applicant was guilty or not.
The Court stated that a judge must be presumed partial unless there is evidence that proves otherwise.
There were no actual evidence that the judge was in fact impartial, so the matter had to be decided using the objective test.

Question 32

What can cause impartiality?

Answer 32

• Relationship between judge and other branches of government (criminal cases)
• Involvement of judges in different capacities
• Prior involvement of judges at at earlier stage of the case
• Close relationship with parties in the proceedings
• Personal interest in the outcome of the proceedings

Question 33

Case regarding impartiality?

Answer 33

Tsfayo v UK
Applicant was a refugee from Ethiopia, who failed to renew her application fora tax benefit due to lack of familiarity with the benefits system and her poor english. She filed a backdated claim for benefits, which was denied by the Council as she had failed to show a “good reason” for the delay,
The applicant then appealed the decision to a Review Board, who rejected the appeal. The board had three members of the Council.
The Court found the Board to be partial, as the members who were also part of the Council might infect the judgement of the Board.

Question 34

What did Tsfayo v UK state on tiers of proceedings?

Answer 34

The Court had found that the Board did not meet the requirements of an impartial tribunal, but the case was able to be brought before the High Court. While the court had the power to overturn the Boards decision, which would normally be in compliance with Art. 6 §1, it did not have jurisdiction to rehear evidence or substitute its own views for those of the Board, as to the applicants credibility. Therefore, there was no possibility that the central issue in the case would be determined by an impartial tribunal

Question 35

What does “public hearing” entail?

Answer 35

General rule - hearings should be public

Secrecy is not conducive to a fair administration of justice

Question 36

Is the right to a public hearing absolute?

Answer 36

No, §1 lists circumstances where the requirement can be deviated from

In the interest of:

• morals
• public order
• national security
• juveniles
• protection of parties private life
• justice

Exclusions must be necessary, i.e., the Court will conduct a proportionality assessment !

Question 37

Can a violation of the right to a public hearing be remedied by a public hearing on appeal?

Answer 37

No, not unless the appeal contains a de novo review

Question 38

What if the hearing is public, but it’s placed in a odd location or at an obscure time of day?

Answer 38

States cannot circumvent the right by claiming that the hearing is public, but conducting it on a remote island or in the middle of the night (where no one will come)

Question 39

Is it possible to waive your right to a public trial?

Answer 39

Yes, if its unequivocal and not counter to any public interest

Question 40

Meaning of right to “public judgement”?

Answer 40

The Court has interpreted the requirement to be met as long as the judgement is made available to public, i.e., it does not have be read out aloud in the court room as long as it is published in a registry freely available to everyone (not just people with a “legitimate interest”)

Question 41

Meaning of judgement within a “reasonable time”?

Answer 41

From the time proceedings are instigated until final decision (including appeals=

No absolute time limit, depends:

• complexity of case
• conduct of parties

Overall length of procedure can be too long or the delay of one step in the proceedings can be excessive

Question 42

Can the State excuse long proceedings with backing of cases?

Answer 42

No, its not an excuse for the State that delays are caused by a backing of cases resulting from ineffectiveness within its court system - this the states own responsibility

If the delay is caused by a backing of cases resulting from ineffectiveness within its court system, the Court might find a violation of Art. 6 even though the delay has not been excessive

Question 43

What step in the proceedings do the different rights relate to?

Answer 43

Initiation of proceedings

• access to court
• independent and impartial tribunal

Conduct of proceedings

• appearance in court
• (legal aid)
• effective participation
• equality of arms
• adversarial nature of proceedings
• public and oral hearing

End of proceedings

• public judgement
• reasoned judgment
• res judicata