Article 6 of the European Convention on Human Rights
Article 6 of the European Convention on Human Rights is a provision of the European Convention which protects the right to a fair trial. In criminal law cases and cases to determine civil rights it protects the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other minimum rights for those charged in a criminal case (adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter).
Article 6 reads as follows.
|“||1.In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2.Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3.Everyone charged with a criminal offence has the following minimum rights:
The majority of Convention violations that the Court finds today are excessive delays, in violation of the "reasonable time" requirement, in civil and criminal proceedings before national courts, mostly in Italy and France. Under the "independent tribunal" requirement, the Court has ruled that military judges in Turkish state security courts are incompatible with Article 6.
Another significant set of violations concerns the "confrontation clause" of Article 6 (i.e. the right to examine witnesses or have them examined). In this respect, problems of compliance with Article 6 may arise when national laws allow the use in evidence of the testimonies of absent, anonymous and vulnerable witnesses.
- "Colozza v Italy" (1985) - "When domestic law permits a trial to be held notwithstanding the absence of a person "charged with a criminal offence" who is in Mr. Colozza’s position, that person should, once he becomes aware of the proceedings, be able to obtain, from a court which has heard him, a fresh determination of the merits of the charge." (see also: In absentia trial in Europe)
- "Heaney and McGuinness v. Ireland" (2000) - Case involving two Irish citizens imprisoned for choosing to remain silent and to use their rights not to incriminate themselves when suspected of an IRA-related terrorist act. "The Court, accordingly, finds that the security and public order concerns relied on by the Government cannot justify a provision which extinguishes the very essence of the applicants' rights to silence and against self-incrimination guaranteed by Article 6 § 1 of the Convention."
- "Perez v France" (2004) - "the right to a fair trial holds so prominent a place in a democratic society that there can be no justification for interpreting Article 6 § 1 of the Convention restrictively"
- "Garcia Ruiz v Spain" - The Court has tended to follow the Fourth Instance doctrine, stating that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention.
- "Van Kück v Germany" (2003) - the court took the approach of considering the merits of the case and in finding a breach based on the fact that the German courts had failed to follow the Strasbourg courts approach to medical necessity on hormone replacement therapy and gender reassignment surgery. This was in line and an expansion of the earlier ruling in Camilleri v Malta 2000 in which the courts were more willing to consider the merits of the courts decision which compromised fairness, stating that the decision had been 'arbitrary or manifestly unreasonable'.
- "Khamidov v Russia" (2007)- the court considered 'abundant evidence' contradicting the finding of the national court thus resulting in an unreasonableness of this conclusion is so striking and palpable on the face of it' that the decision was 'grossly arbitrary'. Thus once again showing the courts changing stance in considering the actual merits of a case. This therefore illustrates the court is developing an appellate function as opposed to a review function.
The Convention applies to contracting parties only, however in cases where a contracting party court has to confirm the ruling of a non-contracting state, they retain a duty to act within the confines of article 6, such was the case in Pellegrini v Italy 2001 case concerning the application of Vatican ecclesiastical court ruling on a divorce case.
1. In the determination of criminal charges 'Criminal' - Engel v Netherlands set out 3 criteria to determine meaning of criminal; a) classification of the offense in the law of the respondent state, b) the nature of the offence; c) the possible punishment. Funke v France states that if the contracting state classifies the act as criminal, then it is automatically so for the purposes of article 6.
- "Heaney and McGuinness v. Ireland". Retrieved 17 June 2011.
- "Perez v France". Retrieved 9 January 2010.
- "Courts' refusal to order reimbursement of top-up costs of transsexual's gender re-assignment treatment". Retrieved 9 January 2010.
- "Khamidov v Russia". Retrieved 17 June 2011.
- N. Mole, C. Harby The right to a fair trial. A guide to the implementation of Article 6 of the European Convention on Human Rights Strasbourg: Council of Europe, 2006