Human rights handbooks, No. 3
The right to
a fair trial
A guide
to the implementation
of Article 6
of the European Convention
on Human Rights
Nuala Mole and Catharina Harby
COUNCIL
OF EUROPE
CONSEIL
DE L'EUROPE
COUNCIL
OF EUROPE
CONSEIL
DE L'EUROPE
Human rights handbooks, No. 3
Right to
a fair trial
A guide
to the implementation
of Article 6
of the European Convention
on Human Rights
Nuala Mole and Catharina Harby
The opinions expressed in this publication are those
of the author and do not engage the responsibility
of the Council of Europe. They should not be re-
garded as placing upon the legal instruments men-
tioned in it any official interpretation capable of
binding the governments of member states, the
Council of Europe's statutory organs or any organ
set up by virtue of the European Convention on Hu-
man Rights.
Directorate General of Human Rights
Council of Europe
F-67075 Strasbourg Cedex
 Council of Europe, 2001
First impression, October 2001
Printed in Germany
3
Contents
1. Introduction . . . . . . . . . . . . . . . . . . . . 5
Article 6 . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Right to a fair trial . . . . . . . . . . . . . . . . . . . . . . . . . 5
2. What is the responsibility of the judge? 7
3. At what stage of the proceedings does
Article 6 apply? . . . . . . . . . . . . . . . . . . . 10
4. What are civil rights and obligations? 11
Civil rights or obligations . . . . . . . . . . . . 12
Not civil rights and obligations . . . . . . . . 13
5. What is a criminal charge? . . . . . . . . 15
Meaning of charge . . . . . . . . . . . . . . . 15
Meaning of criminal . . . . . . . . . . . . . . 15
Domestic classification . . . . . . . . . . . . . . . . . . . . 16
Nature of the offence . . . . . . . . . . . . . . . . . . . . . 16
A  The scope of the violated norm . . . . . . . . . . 16
B  The purpose of the penalty . . . . . . . . . . . . . . 17
The nature and severity of the penalty . . . . . . . . 17
6. What does the right to a public hearing
incorporate? . . . . . . . . . . . . . . . . . . . . . 19
7. What is meant by pronounced publicly?
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8. What is the meaning of the reasonable
time guarantee? . . . . . . . . . . . . . . . . . . . 23
Complexity of the case . . . . . . . . . . . . . . 23
The conduct of the applicant . . . . . . . . . 24
The conduct of the authorities . . . . . . . . 24
What is at stake for the applicant . . . . . . 25
9. What is required for a tribunal to be (1)
independent and (2) impartial? . . . . . . . 28
Independence . . . . . . . . . . . . . . . . . . . . 28
Composition and appointment . . . . . . . . 28
Appearances . . . . . . . . . . . . . . . . . . . . . 29
Subordination to other authorities . . . . . 29
Impartiality . . . . . . . . . . . . . . . . . . . . . . . 29
Differing roles of the judge . . . . . . . . . . 31
Rehearings . . . . . . . . . . . . . . . . . . . . . . . 32
Specialist tribunals . . . . . . . . . . . . . . . . . 32
Juries . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Established by law . . . . . . . . . . . . . . . . . 33
4
10. What does the notion of fair hearing
include? . . . . . . . . . . . . . . . . . . . . . . . . . 35
Access to court . . . . . . . . . . . . . . . . . . . . 35
Presence at proceedings . . . . . . . . . . . . . 38
Freedom from self-incrimination . . . . . . 39
Equality of arms and the right to adversarial
proceedings . . . . . . . . . . . . . . . . . . . . . . 40
Right to a reasoned judgment . . . . . . . . . 43
11. What special rights apply to juveniles?
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
12. What is the situation regarding admissi-
bility of evidence? . . . . . . . . . . . . . . . . . 46
13. What actions might contravene the
presumption of innocence? . . . . . . . . . . 50
14. What is the meaning of the right to
prompt intelligible notification of charges
as covered in Article 6 (3) a? . . . . . . . . . 52
15. What is adequate time and facilities
according to Article 6 (3) b? . . . . . . . . . 54
16. What is incorporated in the right to
representation and legal aid according to
Article 6 (3) c? . . . . . . . . . . . . . . . . . . . . 57
17. How shall the right to witness attend-
ance and examination as covered by Article
6 (3) d be interpreted? . . . . . . . . . . . . . . 60
18. What does the right to an interpreter as
covered by Article 6 (3) e incorporate? . 63
19. What are the problems in relation to
supervisory review? . . . . . . . . . . . . . . . . 64
5
1. Introduction
This handbook is designed to assist judges of
all levels in ensuring that the proceedings over
which they preside are conducted in conformity
with the obligations under Article 6 of the European
Convention on Human Rights.
It is divided into sections, each of which treats
a different aspect of the guarantees contained in
that article.
This first section is a general introduction to
the principles contained in Article 6, many of which
are already reflected in national law and practice,
but judges also have the responsibility to ensure
that all aspects of the administration of justice are
in compliance with Convention standards.
Article 6
Right to a fair trial
1 In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is en-
titled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal estab-
lished by law. Judgment shall be pronounced publicly
but the press and public may be excluded from all or
part of the trial in the interests 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 to the extent strictly neces-
sary 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 pre-
sumed innocent until proved guilty according to law.
3 Everyone charged with a criminal offence has the fol-
lowing minimum rights:
a to be informed promptly, in a language which he under-
stands and in detail, of the nature and cause of the ac-
cusations against him;
b to have adequate time and facilities for the preparation
of his defence;
c to defend himself in person or through legal assistance
of his own choosing or, if he has not sufficient means to
pay for legal assistance, to be given it free when the in-
terests of justice so require;
d to examine or have examined witnesses against him and
to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses
against him;
e to have the free assistance of an interpreter if he cannot
understand or speak the language used in court.
As one can see from the above, Article 6 guar-
antees the right to a fair and public hearing in the
determination of an individual's civil rights and obli-
gations or of any criminal charge against him. The
6
Court, and previously the Commission, have inter-
preted this provision broadly, on the grounds that it
is of fundamental importance to the operation of
democracy. In the case of Delcourt v. Belgium, the
Court stated that
In a democratic society within the meaning of the Con-
vention, the right to a fair administration of justice
holds such a prominent place that a restrictive interpre-
tation of Article 6 (1) would not correspond to the aim
and the purpose of that provision.
1
The first paragraph of Article 6 applies to both
civil and criminal proceedings, but the second and
third paragraphs state that they apply only to crimi-
nal proceedings. As will be explained later in this
handbook, however, they may under certain circum-
stances apply also to civil proceedings.
As with all articles of the European Convention,
Article 6 has been interpreted by the European
Court of Human Rights in its case-law.
2
This case-law
defines the content of the Convention rights, and
the decisions of the Commission and Court will be
discussed and analysed in this handbook. A word of
warning must however be given about the Article 6
case-law. Since no complaint will be held admissible
by the Court unless all domestic remedies have been
exhausted,
3
almost all cases alleging violations of
Article 6 will have proceeded to the highest national
courts before reaching Strasbourg. The Court will
frequently find no violation of Article 6 because it
considers that the proceedings "taken as a whole"
were fair, as a higher court was able to rectify the er-
rors of the lower court. Judges sitting in the lower
courts may therefore be erroneously persuaded
that because a particular procedural defect was not
found to be a violation of the Convention by the
Strasbourg organs ­ because it was rectified by a
higher court ­ it complies with Convention stand-
ards. Since the judge sitting in the lower court is re-
sponsible for ensuring compliance with Article 6 in
the proceedings before him, he cannot rely on the
possibility that a higher court may rectify the errors.
1 Delcourt v. Belgium,
17 January 1970,
para. 25.
2 Some references in this
handbook are to deci-
sions of the European
Commission of Human
Rights. The Commission
was a first tier filter for
complaints which was
abolished when
Protocol No. 11 to the
Convention came into
force in 1998. All deci-
sions are now taken by
the European Court of
Human Rights.
3 See Article 35.
7
2. What is the responsibil-
ity of the judge?
The following outline may be helpful for judges
presiding over a hearing in order to ensure that all
the guarantees contained in Article 6 are ob-
served. Every judge should at the outset of the
hearing remind himself/herself of the responsibility
to ensure that these guarantees are protected, and
at the conclusion check that he/she has discharged
these duties. Below are some specific examples of
the responsibility of the judge, of which details will
be provided further on. This issue should, however,
be kept in mind during the reading of the complete
handbook, since the judge is responsible for all the
points raised here.
Particularly in criminal cases, the judge has to
ensure that the defendant is adequately repre-
sented. He/she also has the responsibility of mak-
ing proper provision for vulnerable defendants.
The judge may need to refuse to proceed with the
trial if he/she thinks that legal representation is re-
quired but none is available (see further chapter 16).
The judge has the responsibility of ensuring
that the principle of equality of arms is upheld,
which means that all parties must be given a reason-
able opportunity to present their case in conditions
that do not place them at a substantial disadvan-
tage vis--vis their opponents. In the case of Krcmár
and others v. the Czech Republic, the Court stated that
A party to the proceedings must have the possibility to
familiarise itself with the evidence before the court, as
well as the possibility to comment on its existence, con-
tents and authenticity in an appropriate form and
within an appropriate time, if need be, in a written form
and in advance.
4
(On the issue of equality of arms, see further
chapter 10.)
A further issue is what the judge's responsibility
is if the prosecution does not appear at the
hearing. If the judge rules on the issue based only
on the information on the prosecution's file, this is
not a direct violation of the Convention, but it is an
unsatisfactory practice and could give rise to the fol-
lowing problems:
For example, has the defence had a chance to
see all parts of the file? The judge has to make sure
that the defendant is informed in detail of the
charge against him/her. The judge also has to inform
the defence what conclusions he/she is drawing
from the prosecution's file.
5
This is particularly so if
these are central to the determination in order that
there is an opportunity to submit arguments on
those inferences. The case of Pélissier and Sassi
v. France
6
is an example. The applicants in this case
had been charged with the offence of "criminal
bankruptcy". Argument before the Criminal Court
was confined to this offence, and on the prosecu-
4 Krcmár and others
v. the Czech Republic,
3 March 2000.
5 See e.g. F. K., T.M. and
C.H. v. Austria, Appl.
No. 18249/91, where the
Commission declared
admissible a claim by the
applicants under Arti-
cle 5 (3) that they had not
been brought promptly
before a judge who was
competent to consider
their case. The case was
later settled. Article 5 (3)
reads: Everyone arrested
or detained in accordance
with the provisions of
paragraph 1.c of this arti-
cle shall be brought
promptly before a judge
or other officer authorised
by law to exercise judicial
power and shall be enti-
tled to trial within a rea-
sonable time or to release
pending trial. Release
may be conditioned by
guarantees to appear for
trial.
6 Pélissier and Sassi
v. France,
25 March 1999.
8
tor's appeal to the Court of Appeal the applicants
were at no stage accused by the judicial authorities
of having "aided and abetted" criminal bankruptcy.
The European Court of Human Rights found
that the applicants were not aware that the Court of
Appeal might return a verdict of aiding and abetting
criminal bankruptcy. It further noted that the offence
of aiding and abetting criminal bankruptcy differed
from the offence of criminal bankruptcy in more
than the degree of participation, as the Government
had argued. The Court considered that the Court of
Appeal, in using the right which it unquestionably
had to recharacterise facts over which it properly
had jurisdiction, should have afforded the appli-
cants the possibility of exercising their defence
rights on that issue in a practical and effective man-
ner and, in particular, in good time.
The Court therefore found a violation of Arti-
cle 6 (3) a and b of the Convention (the right to be
informed promptly of the accusation and the right
to have adequate time and facilities to prepare de-
fence), taken in conjunction with the general right to
a fair trial provided by Article 6 (1).
Further issues arise in relation to the question
of the responsibility of the judge if the defendant
appears to have been ill-treated whilst in pre-
trial detention. The Court has stated that where an
individual raises an arguable claim that he has been
seriously ill-treated by the police or other agents of
the State, Article 3, read in conjunction with the
State's general duty under Article 1 to secure to
everyone within their jurisdiction the rights and
freedoms in the Convention, requires by implication
that there should be an effective official investiga-
tion. This investigation should be capable of leading
to the identification and punishment of those re-
sponsible. If this were not the case, the fundamen-
tally important prohibition of torture would be
ineffective in practice and it would be possible for
agents of the State to abuse the rights of those
within their control with virtual impunity.
7
Further, in
Selmouni v. France,
8
the Court stated that where an in-
dividual is taken into custody in good health but is
found to be injured at the time of release, it is in-
cumbent on the State to provide a plausible expla-
nation of how those injuries were caused. If such
explanation is not given, a clear issue arises under
Article 3. In connection this issue, one should also
bear in mind obligations under other international
instruments, such as the United Nations Conven-
tion against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment. That Conven-
tion states, inter alia, that each State shall take effec-
tive legislative, administrative, judicial or other
measures to prevent acts of torture in any territory
under its jurisdiction. This provision allows for no
derogation.
The judge has the responsibility to determine
the admissibility of evidence. The judge must ap-
ply the Code of Criminal Procedure on this point in a
7 Assenov and others
v. Bulgaria, 28 October
1998, para. 102.
8 Selmouni v. France,
28 July 1999, para. 87.
9
way which is consistent with Convention case-law.
Issues such as the use of police informers or
"agents provocateurs" will require particular atten-
tion as well as the concealment of information on
the ground of state security.
The judge has the responsibility to ensure that
adequate facilities for interpretation are pro-
vided (see further chapter 18).
The judge has a duty to ensure that in order to
maintain the presumption of innocence, he/she
may have to issue the appropriate order to avoid
adverse press coverage. However, rather than ex-
cluding the press completely, the judge should make
clear what the press can and cannot report on (see
further on this issue chapter 6).
Finally, the judge may also have a responsibility
in relation to the execution of the judgment. The
state has a responsibility to ensure that judgments
are executed. If no other officials of the justice sys-
tem have been charged with this specific responsi-
bility, it will remain with the judge.
10
3. At what stage of the
proceedings does Article 6
apply?
The guarantees provided for in Article 6 apply
not only to the court proceedings, but also to the
stages which both precede and follow them.
In criminal cases, the guarantees include pre-
trial investigations carried out by the police. The
Court stated in Imbroscia v. Switzerland
9
that the rea-
sonable time guarantee starts running from when a
charge
10
comes into being, and that other require-
ments of Article 6 ­ especially of paragraph 3 ­ may
also be relevant before a case is sent for trial if and
in so far as the fairness of the trial is likely to be seri-
ously prejudiced by an initial failure to comply with
them.
The Court has also held that in cases concern-
ing Article 8 of the Convention ­ the right to family
life ­ Article 6 also applies to the administrative
stages of the proceedings.
11
Article 6 does not provide a right of appeal.
However, this right is provided for in criminal cases
in Article 2 of Protocol No. 7 to the European Con-
vention.
Even if Article 6 does not provide for a right of
appeal, the Court has stated in its case-law that
when a State does provide in its domestic law for
such a right of appeal, these proceedings are cov-
ered by the guarantees in Article 6.
12
The way in
which the guarantees apply must, however, depend
on the special features of such proceedings. Ac-
cording to the Court's case-law, account must be
taken of the entirety of the proceedings conducted
in the domestic legal order, the functions in law and
practice of the appellate body, and the powers and
the manner in which the interests of the parties are
presented and protected.
13
Therefore, there is no
right as such to any particular kind of appeal or
manner of dealing with appeals.
The Court has also stated that Article 6 applies
to proceedings before a constitutional court if the
outcome of these proceedings is directly decisive
for a civil right or obligation.
14
Article 6 also covers post-hearing procedures
such as the execution of a judgment. The Court
held in Hornsby v. Greece
15
that the right to court as
covered by Article 6 would be illusionary if a Con-
tracting State's domestic legal system allowed a fi-
nal, binding judicial decision to remain inoperative
to the detriment of one party.
It is clear that Article 6 covers the proceedings
as a whole. The Court has stated that the interven-
tion of the legislature to determine the outcome of
the proceedings by passing a law may violate the
principle of equality of arms.
16
9 Imbroscia v. Switzerland,
24 November 1993,
para. 36.
10 See below, chapter 5, for
an explanation of the
term charge.
11 See e.g. Johansen v. Nor-
way, 27 June 1996.
12 Delcourt v. Belgium,
17 January 1970,
para. 25.
13 Monnell and Morris
v. The United Kingdom,
2 March 1987, para. 56.
14 Kraska v. Switzerland,
19 April 1993, para. 26.
15 Hornsby v. Greece,
19 March 1997, para. 40.
16 Stran Greek Refineries
v. Greece, 9 December
1994, paras. 46-49. For
more about the principle
of equality of arms, see
further below, chapter 10.
11
4. What are civil rights
and obligations?
Article 6 guarantees everyone a right to a fair
hearing in the determination of his/her civil rights
and obligations. From the wording of this article, it
is clear that it does not cover all proceedings that an
individual might be a party to, but is limited to those
concerning civil rights and obligations. It is there-
fore important to establish the meaning of this
phrase.
There is substantial case-law by the Court and
the Commission as to what is and what is not a civil
right or obligation. The interpretation of the phrase
by the Convention organs has been progressive.
Matters which were once considered outside the
scope of Article 6, such as social security, now gen-
erally fall within the remit of what are civil rights and
obligations.
The Court has made it clear that the concept of
civil rights and obligations is autonomous and can-
not be interpreted solely by reference to the do-
mestic law of the respondent State.
17
However, the
Court has refrained from formulating any abstract
definition of the phrase, apart from distinguishing
between private and public law. The Court has in-
stead ruled on the particular facts of each case.
There are, though, certain general guidelines
that can be drawn from the Court's case-law.
Firstly, in ascertaining whether a case concerns
the determination of a civil right, only the charac-
ter of the right at issue is relevant.
18
As the Court
stated in the case of Ringeisen v. Austria,
The character of the legislation which governs how the
matter is to be determined (civil, commercial, adminis-
trative law, etc.) and that of the authority which is in-
vested with jurisdiction in the matter (ordinary court,
administrative body, etc.) are therefore of little conse-
quence.
19
Accordingly, how the right or obligation is char-
acterised in domestic law is not decisive. This guide-
line is specifically important for cases involving
relations between an individual and the state. In
such a situation, the Court has stated that whether
the public authority in question had acted as a pri-
vate person or in its sovereign capacity is not con-
clusive.
20
The key point in determining whether
Article 6 is applicable or not is whether the out-
come of the proceedings is decisive for private
law rights and obligations.
21
Secondly, any uniform European notion as to
the nature of the right should be taken into consid-
eration.
22
Thirdly, the Court has stated that even though
the concept of civil rights and obligations is autono-
mous, the legislation of the State concerned is not
without importance. The Court held in König v. the Federal
Republic of Germany that
17 See e.g. Ringeisen
v. Austria, 16 July 1971,
para. 94, and König v. the
Federal Republic of Ger-
many, 28 June 1978,
para. 88.
18 König v. the Federal Re-
public of Germany, 28
June 1978, para. 90.
19 Ringeisen v. Austria,
16 July 1971, para. 94.
20 König v. the Federal Re-
public of Germany, 28
June 1978, para. 90.
21 H v. France, 24 October
1989, para. 47.
22 Feldbrugge v. the Nether-
lands, 29 May 1986,
para. 29.
12
Whether or not a right is to be regarded as civil within
the meaning of this expression in the Convention must
be determined by reference to the substantive content
and effects of the right ­ and not its legal classification
­ under the domestic law of the State concerned.
23
The Court stated in the case of Osman v. the
United Kingdom
24
that where a general right exists in
national law, a Contracting State cannot avoid the
application of the fair trial guarantees in Article 6
where its courts declined to accord that right in a
particular case.
As stated above, the Court has taken the ap-
proach to decide each case on its own particular cir-
cumstances. Examples of situations which the Court
has found involved a civil right or obligation follow.
Civil rights or obligations
ä The Court has first and foremost held that the
rights and obligations of private persons in
their relations inter se are in all cases civil rights
and obligations. The rights of private persons in
their relations between themselves, in for in-
stance contract law,
25
commercial law,
26
the law
of tort,
27
family law,
28
employment law
29
and the
law of property
30
are always civil.
ä As regards the situation where a case involves
the relationship between an individual and the
State, the area is more problematic. The Court
has recognised a number of such rights and
obligations as being civil. Property is one area
where the Court has held Article 6 to be appli-
cable. In those stages in expropriation, con-
solidation and planning proceedings, and
procedures concerning building permits and
other real-estate permits, which have direct
consequences for the right of ownership with
respect to the property involved,
31
and also
more general proceedings where the outcome
has an impact of the use or the enjoyment of
property,
32
the fair hearing guarantee applies.
ä Article 6 also covers the right to engage in com-
mercial activity. Cases in this area have involved
the withdrawal of an alcohol licence from a res-
taurant,
33
the licence to run a medical clinic
34
and to grant permission to run a private
school.
35
The right to practise a profession such
as medicine or law is also covered by Article 6.
36
ä The Court has further held that in proceedings
where rights and obligations concerning family
law are at issue, Article 6 applies. Examples in
this area are decisions to place children in
care,
37
concerning parental access to chil-
dren,
38
adoption
39
or fostering.
40
ä As mentioned above, in its earlier case-law the
Court held that proceedings concerning welfare
benefits were not covered by Article 6. However,
the Court has now made clear that Article 6
covers proceedings in which a decision is taken
23 König v. the Federal Re-
public of Germany, 28
June 1978, para. 89.
24 Osman v. the United
Kingdom, 28 Octo-
ber 1998.
25 Ringeisen v. Austria,
16 July 1971.
26 Edificaciones March
Gallego S.A. v. Spain,
19 February 1998.
27 Axen v. the Federal Re-
public of Germany, 8
December 1983, and
Golder v. the United
Kingdom, 21 February
1975.
28 Airey v. Ireland, 9 Octo-
ber 1979, and Rasmussen
v. Denmark, 28 Novem-
ber 1984.
29 Buchholz v. the Federal
Republic of Germany,
6 May 1981.
30 Pretto v. Italy, 8 Decem-
ber 1983.
31 See e.g. Sporrong and
Lönnroth v. Sweden,
23 September 1982, Poiss
v. Austria, 23 April 1987,
Bodén v. Sweden, 27 Oc-
tober 1987, Hkansson
and Sturesson v. Sweden,
21 February 1990, Mats
Jacobsson v. Sweden,
28 June 1990, and Ruiz-
Mateos v. Spain, 12 Sep-
tember 1993.
32 E.g. Oerlamans v. the
13
on entitlement, under a social security scheme,
to health insurance benefits,
41
to welfare (dis-
ability) allowances,
42
and to State pensions.
43
In
the case of Schuler-Zgraggen v. Switzerland, which
concerned invalidity pensions, the Court stated
in general that "... the development in the law... and
the principle of equality of treatment warrant taking the
view that today the general rule is that Article 6 (1)
does apply in the field of social insurance, including
even welfare assistance".
44
Article 6 further covers
proceedings in which a decision is taken on the
obligation to pay contributions under a social
security scheme.
45
ä The guarantee in Article 6 applies to proceed-
ings against the public administration concern-
ing contracts,
46
damages in administrative
proceedings
47
or in criminal proceedings.
48
It
applies to proceedings where a claim is made
for compensation for unlawful detention under
Article 5 (5) following acquittal in criminal pro-
ceedings.
49
The right to recover monies paid in
tax is also covered by Article 6.
50
ä Further, an individual's right to respect for his
reputation by a private person is considered to
be a civil right.
51
ä Finally, the Court has held that where the out-
come of constitutional or public law proceed-
ings may be decisive for civil rights and
obligations, these proceedings are covered by
the fair trial guarantee in Article 6.
52
Not civil rights and obliga-
tions
In accordance with the Commission's and the
Court's approach to rule on each case on its particu-
lar circumstances, the Strasbourg organs have also
declared certain areas of law as not falling within the
remit of Article 6 (1). This means that claims relating
to disputes over a right contained in the Convention
will not automatically attract the protection of Arti-
cle 6. However, Article 13 (the right to an effective
remedy) will apply, and this may require a remedy or
procedural safeguards akin to those found in Arti-
cle 6 (1). The following are examples of issues that
are not regarded as civil rights and obligations.
ä General taxation issues and taxation assess-
ments.
53
ä Matters of immigration and nationality.
54
ä Liability for military service.
55
ä Cases concerning the reporting of court pro-
ceedings. An example is the case of Atkinson
Crook and the Independent v. the United Kingdom
56
which concerned three applicants, two journal-
ists and one newspaper who complained that
their Article 6 right of "access to court" had
been violated because they could not challenge
a decision to hold sentencing proceedings in
camera in a case which they wanted to report.
Netherlands, 27 Novem-
ber 1991 and De Geoffre
de la Pradelle v. France,
16 December 1992.
33 Tre Traktörer v. Sweden,
7 July 1989.
34 König v. the Federal Re-
public of Germany, 28
June 1978.
35 Jordebro Foundation
v. Sweden, 6 March
1987, Commission Re-
port, 51 DR 148.
36 König v. the Federal Re-
public of Germany,
28 June 1978, and
H v. Belgium, 30 Novem-
ber 1987.
37 Olsson v. Sweden,
24 March 1988.
38 W. v. the United King-
dom, 8 July 1987.
39 Keegan v. Ireland,
26 May 1994.
40 Eriksson v. Sweden,
22 June 1989.
41 Feldbrugge v. the Nether-
lands, 29 May 1986.
42 Salesi v. Italy, 26 Febru-
ary 1993.
43 Lombardo v. Italy, 26 No-
vember 1992.
44 Schuler-Zgraggen v. Swit-
zerland, 24 June 1993,
para. 46.
45 Schouten and Meldrum
v. the Netherlands, 9 De-
cember 1994.
14
The Commission held that there was no indica-
tion that the applicants enjoyed a "civil right"
under domestic law to report on the sentencing
proceedings, and accordingly found that the ap-
plicants' complaints did not involve a civil right
or obligation within the meaning of Article 6.
ä The right to stand for public office.
57
ä The right to state education.
58
ä The refusal to issue a passport.
59
ä Issues concerning legal aid in civil cases.
60
ä The right to State medical treatment.
61
ä The unilateral decision of the State to compen-
sate the victims of a natural disaster.
62
ä Applications for patents.
63
ä Disputes between administrative authorities
and employees who occupy posts involving
participation in the exercise of powers con-
ferred by public law, e.g. the armed forces or
the police.
64
46 Philis v. Greece, 27 Au-
gust 1991.
47 See e.g. Editions
Périscope v. France,
26 March 1992, Barraona
v. Portugal, 8 July 1987,
and X v. France,
3 March 1992.
48 Moreira de Azevedo
v. Portugal, 23 Octo-
ber 1990.
49 Georgiadis v. Greece,
29 May 1997.
50 National & Provincial
Building Society and
others v. the United King-
dom, 23 October 1997.
51 See e.g. Fayed v. the
United Kingdom, 21 Sep-
tember 1994.
52 Ruiz-Mateos v. Spain,
12 September 1993.
53 See e.g. X v. France,
Appl. No. 9908/82
(1983), 32 DR 266. See
however footnote 32
above.
54 P v. the United Kingdom,
Appl. No. 13162/87
(1987), 54 DR 211 and S.
v. Switzerland, Appl.
No. 13325/87 (1988),
59 DR 256.
55 Nicolussi v. Austria, Appl.
No. 11734/85 (1987),
52 DR 266.
56 Atkinson Crook and The
Independent v. the
United Kingdom,
Appl. No.13366/87
(1990), 67 DR 244.
57 Habsburg-Lothringen
v. Austria,
Appl. No. 15344/89
(1989), 64 DR 210.
58 Simpson v. the United
Kingdom, Appl.
No. 14688/89 (1989),
64 DR 188.
59 Peltonen v. Finland,
Appl. No. 19583/92
(1995), 80-A DR 38.
60 X v. the Federal Republic
of Germany, Appl.
No. 3925/69 (1974),
32 CD 123.
61 L v. Sweden, Appl.
No. 10801/84 (1978),
61 DR 62.
62 Nordh and others v. Swe-
den, Appl. No. 14225/88
(1990), 69 DR 223.
63 X v. Austria, Appl. No.
7830/77 (1978), 14 DR
200. Disputes over own-
ership of patents have,
however, been held to be
civil rights. (British Ameri-
can Tobacco v the Neth-
erlands, Appl. No. 19589/
92, 20 November 1995).
64 Pellegrin v. France, 8 De-
cember 1999.
15
5. What is a criminal
charge?
Meaning of charge
Article 6 also guarantees a fair trial in the deter-
mination of a criminal charge against a person. What
is then meant by a "criminal charge"?
"Charge" is an autonomous concept under
the Convention which applies irrespective of the
definition of a "charge" in domestic law. In the case
of Deweer v. Belgium, the Court stated that the word
"charge" should be given a substantive rather than a
formal meaning, and it felt compelled to look be-
hind the appearances and investigate the realities of
the procedure in question. The Court then went on
to state that "charge" could be defined as
the official notification given to an individual by the
competent authority of an allegation that he has com-
mitted a criminal offence,
or, where
the situation of the [suspect] has been substantially
affected.
65
In the above mentioned case, following a re-
port that the applicant had breached certain price
regulations, a prosecutor ordered the provisional
closure of his shop. Within the meaning of Belgium
law, criminal proceedings were not instituted since
the applicant accepted a settlement offer. The Court
nevertheless considered that the applicant had
been under a criminal charge.
Following are some further examples of what
constitutes a "charge":
ä When a person's arrest for a criminal offence is
ordered.
66
ä When a person is officially informed of the
prosecution against him.
67
ä When authorities investigating custom offences
require a person to produce evidence and
freeze his bank account.
68
ä When a person has appointed a defence lawyer af-
ter the opening of a file by the public prosecutor's
office following a police report against him.
69
Meaning of criminal
As the Court stated in the case of Engel and oth-
ers v. the Netherlands
70
State parties are free to desig-
nate matters in their domestic law as either criminal,
disciplinary or administrative, as long as this distinc-
tion does not in itself contravene the Convention.
The normal exercise of Convention rights, for exam-
ple freedom of speech or freedom of expression,
cannot be a criminal offence.
65 Deweer v. Belgium,
27 February 1980, paras.
42, 44 and 46.
66 Wemhoff v. the Federal
Republic of Germany, 27
June 1968.
67 Neumeister v. Austria,
27 June 1986.
68 Funke v. France, 25 Feb-
ruary 1993.
69 Angelucci v. Italy, 19 Feb-
ruary 1991.
70 Engel and others v. the
Netherlands, 8 June 1976,
para. 81.
16
In this case, the Court established criteria for
deciding whether a charge is "criminal" in the sense
of Article 6 or not. These principles have been con-
firmed in later case-law.
Three points are relevant here: The classifica-
tion in domestic law, the nature of the offence, and
the nature and the severity of the penalty.
Domestic classification
If the charge is classified as criminal in the do-
mestic law of the respondent State, Article 6 will ap-
ply automatically to the proceedings and the
considerations set out below do not apply. However,
if the charge is not classified as criminal, this will
not be decisive for the application of the fair trial
guarantees in Article 6. If this was the case, the Con-
tracting States could evade the application of the
fair trial guarantee by decriminalising or re-classify-
ing criminal offences. As the Court stated in the case
of Engel and others v. the Netherlands,
If the Contracting States were able at their discretion to
classify an offence as disciplinary instead of criminal,
or to prosecute the author of a "mixed" offence on the
disciplinary rather than on the criminal plane, the op-
eration of the fundamental clauses of Articles 6 and 7
would be subordinated to their sovereign will. A latitude
extending thus far might lead to results incompatible
with the purpose and object of the Convention.
71
Nature of the offence
There are two subcriteria under this heading: A
­ the scope of the violated norm and B ­ the pur-
pose of the penalty.
A  The scope of the violated norm
If the norm in question only applies to a re-
stricted group of people, such as a profession, this
would indicate that it is a disciplinary and not a crimi-
nal norm. However, if the norm is of general effect it
is likely to be criminal for the purposes of Article 6. In
the case of Weber v. Switzerland, the applicant had filed
a criminal complaint of defamation, and held a press
conference to inform the public of his complaint. He
was then fined for breaching the secrecy of the inves-
tigation. The applicant complained of a violation of
Article 6 when his appeal against the conviction was
dismissed without a public hearing. The Court there-
fore had to rule on the whether this concerned a
criminal matter, and stated:
Disciplinary sanctions are generally designed to ensure
that the members of particular groups comply with the
specific rules governing their conduct. Furthermore, in
the great majority of the Contracting States disclosure
of information about an investigation still pending
constitutes an act incompatible with such rules and
punishable under a variety of provisions. As persons
who above all others are bound by the confidentiality of
71 Engel and others v. the
Netherlands, 8 June 1976,
para. 81.
17
an investigation, judges, lawyers and all those closely
associated with the functioning of the courts are liable
in such an event, independently of any criminal sanc-
tions, to disciplinary measures on account of their pro-
fession. The parties, on the other hand, only take part
in the proceedings as people subject to the jurisdiction
of the courts, and they therefore do not come within the
disciplinary sphere of the judicial system. As Article
185, however, potentially affects the whole population,
the offence it defines, and to which it attaches a puni-
tive sanction, is a "criminal" one for the purposes of the
second criterion.
72
Therefore, since the provision was not re-
stricted to a group of persons in one or more spe-
cific capacities, it was not exclusively disciplinary in
character.
Similarly, in the case of Demicoli v. Malta,
73
which
concerned a journalist who published an article se-
verely criticising two members of parliament, the
breach of privilege proceedings against him was not
considered a matter of internal parliamentary disci-
pline, since the relevant provision potentially af-
fected the whole population.
However, in the case of Ravnsborg v. Sweden,
74
the
Court noted that the fines imposed were for state-
ments the applicant had made as a party to court
proceedings. It held that measure taken to ensure
orderly conduct of court procedures were more akin
to disciplinary sanctions than criminal charges. Arti-
cle 6 was therefore held not to be applicable.
B  The purpose of the penalty
This criteria serves to distinguish criminal
from purely administrative sanctions.
In the case of Öztürk v. the Federal Republic of Ger-
many,
75
the Court considered a case concerning care-
less driving which was decriminalised in Germany.
However, the Court made clear that it was still "crimi-
nal" under Article 6. The norm still had the character-
istics that were the hallmark of a criminal offence. It
was of general application as it applied to all "road
users" and not a particular group (see above), and car-
ried out with a sanction (a fine) of a punitive and
deterrent kind. The Court also noted that the great
majority of State Parties treated minor road traffic of-
fences as criminal.
The nature and severity of the penalty
This heading should not be confused with the
purpose of the penalty (see above). If the purpose of
the penalty does not make Article 6 applicable, the
Court will then have to look at the nature and severity
which can render the fair trial guarantee applicable.
Deprivation of liberty as a penalty generally
makes a norm criminal rather than disciplinary. The
Court stated in Engel and others v. the Netherlands that
in a society subscribing to the rule of law, there belong
to the "criminal" sphere deprivation of liberty liable to
be imposed as a punishment, except those which by
72 Weber v. Switzerland,
22 May 1990, para. 33.
73 Demicoli v. Malta, 27 Au-
gust 1991.
74 Ravnsborg v. Sweden,
21 February 1994.
75 Öztürk v. the Federal
Republic of Germany,
21 February 1984.
18
their nature, duration or manner of execution cannot be
appreciably detrimental. The seriousness of what is at
stake, the traditions of the Contracting States and the
importance attached by the Convention to respect for
the physical liberty of the person all require that this
should be so.
76
In Benham v. the United Kingdom, the Court held
that "where deprivation of liberty is at stake, the interests of
justice in principle call for legal representation".
77
In Campbell and Fell v. the United Kingdom,
78
the
Court declared that loss of remission of almost
three years, even though in English law this was a
privilege rather than a right, was to be taken into ac-
count since it had the effect of causing the deten-
tion to continue after the point where the prisoner
could expect to be released.
As indicated in the quote from Engel and others
v. the Netherlands above, not every deprivation of lib-
erty makes Article 6 applicable. The Court has held
that the duration of a prison sentence of two days
was insufficient for it to be regarded as a criminal
sentence.
The threat of imprisonment can also make Arti-
cle 6 applicable. In Engel v. the Netherlands, the fact
that one of the applicants did finally receive a pen-
alty which did not amount to deprivation of liberty
did not affect the Court's assessment when the out-
come could not diminish the importance of what
was initially at stake.
When the penalty in question is not imprison-
ment or threat of imprisonment but fines, the Court
gives consideration to whether they are intended as
pecuniary compensation for damage or essentially
as a punishment to deter re-offending. Only in case
of the latter will they be considered as belonging to
the criminal sphere.
79
76 Engel and others v. the
Netherlands, 8 June 1976,
para. 82.
77 Benham v. the United
Kingdom, 10 June 1996,
para. 61
78 Campbell and Fell v. the
United Kingdom, 28 June
1984, para. 72.
79 E.g. Bendenoun
v. France, 24 Febru-
ary 1994.
19
6. What does the right to a
public hearing incorpo-
rate?
Article 6 guarantees to everyone a public hear-
ing in the determination of his civil rights and obli-
gations or of any criminal charge against him.
Article 6 further states that the press and public
may be excluded from all or part of the trial in the
interests of morals, public order or national security
in a democratic society, where the interests of juve-
niles or the protection of the private life of the par-
ties require, or to the extent strictly necessary in the
opinion of the court in special circumstances where
publicity would prejudice the interests of justice.
A public hearing is an essential feature of the
right to a fair trial. As the Court stated in Axen v. the
Federal Republic of Germany,
The public character of proceedings before the judicial
bodies referred to in Article 6 (1) protects litigants
against the administration of justice in secret with no
public scrutiny; it is also one of the means whereby con-
fidence in the courts, superior and inferior, can be main-
tained. By rendering the administration of justice visible,
publicity contributes to the achievement of the aim of
Article 6 (1), namely a fair trial, the guarantee of which
is one of the fundamental principles of any democratic
society, within the meaning of the Convention.
80
A public hearing is generally needed to satisfy
the requirements of Article 6 (1) before courts of
first instance or only instance. However, in technical
matters a public hearing may sometimes not be re-
quired.
81
If a public hearing is not held in first instance,
this can be cured by the holding of a public hearing
at a higher instance. However, if the appeal court
does not consider the merits of the case or is not
competent to deal with all aspects of the matter,
there is a violation of Article 6. In the case of Diennet
v. France,
82
the Court held that where there are had
been no public hearing at a disciplinary body, this
was not cured by the fact that the medical appeal
body held its hearing in public since it was not re-
garded as a judicial body with full jurisdiction, in par-
ticular, it did not have the power to assess whether
the penalty in question was proportionate to the
misconduct. It will require exceptional reasons to
justify that no public hearing is held if there has not
been one at the first instance.
83
The right to a public hearing generally includes
a right to an oral hearing, if there are not any ex-
ceptional circumstances.
84
There is no general requirement for an oral
hearing at the appeal court. In e.g. the case of Axen
v. the Federal Republic of Germany,
85
the Court held that
in criminal cases an oral hearing was unnecessary
when the appeal court in question dismissed the ap-
peal solely on grounds of law. However, where the
80 Axen v. the Federal Re-
public of Germany, 8
December 1983,
para. 25.
81 Schuler-Zgraggen v. Swit-
zerland, 24 June 1993,
para. 58  the applicants
right to invalidity pension.
82 Diennet v. France,
26 September 1995,
para. 34.
83 Stallinger and Kuso
v. Austria, 23 April 1997,
para. 51.
84 Fischer v. Austria,
26 April 1995, para. 44.
85 Axen v. the Federal Re-
public of Germany, 8
December 1983,
para. 28.
20
appeal court has to look at facts and law, and decide
on the guilt or innocence of the person charged, an
oral hearing is necessary.
86
In civil cases, oral hearing
at appeal level has been held to be unnecessary. In
the case of K v. Switzerland,
87
the applicant was in-
volved in lengthy proceedings with a firm he had
contracted to do extension work on his house. The
first instance court gave judgment against the appli-
cant in favour of the firm, and the Court of Appeal
confirmed this decision. The applicant then ap-
pealed to the Federal Court, that rejected the appeal
without a hearing and without asking for written ob-
servations.
The Commission stated that
Moreover, insofar as the applicant complains that the
judges of the Federal Court did not deliberate and vote in
public on his civil law appeal, the Commission observes
that no such right is enshrined in the Convention.
Regarding this issue, see further below chap-
ter 10 under Fair hearing ­ right to a hearing in the
presence of the accused.
It is in certain cases possible for the applicant
to waive his right to a public hearing. As the Court
stated in Hkansson and Sturesson v. Sweden,
admittedly neither the letter nor the spirit of this provi-
sion prevents a person from waiving of his own free will,
either expressly or tacitly, the entitlement to have his
case heard in public... However, a waiver must be made
in an unequivocal manner and must not run counter to
any important public interest.
88
In the case of Deweer v. Belgium,
89
the applicant
had accepted an out of court settlement of a crimi-
nal case by payment of a fine. He would otherwise
have had to face the closure of his business pending
criminal proceedings. The Court held that the waiver
of the hearing, i.e. the applicant accepting to pay
the fine, had been tainted by constraint and this
amounted to a violation of Article 6 (1).
In the case of Hkansson and Sturesson v. Sweden
mentioned above, the Court held that the appli-
cants tacitly waived their right to a public hearing as
they had not requested that one should be held
when such a possibility was expressly provided for
by Swedish legislation.
The Court has stated that prison disciplinary
hearings can be held in private. In the case of
Campbell and Fell v. the United Kingdom,
90
the Court de-
clared that consideration must be given to the pub-
lic order and security problems that would be
involved if these proceedings were conducted in
public. This would impose a disproportionate bur-
den on the authorities of the State.
The Court has held that although a complete
ban can not be justified, professional disciplinary
proceedings may be held in private depending on
the circumstances. Factors that should be taken
into account when deciding if a public hearing is
necessary are consideration for professional se-
crecy and the private lives of clients or patients.
91
In B. v. the United Kingdom
92
the Court declared
86 Ekbatani v. Sweden,
26 May 1988, paras. 32-
33.
87 See e.g. K v. Switzerland,
41 DR 242.
88 Hkansson and Sturesson
v. Sweden, 21 February
1990, para. 66.
89 Deweer v. Belgium,
27 February 1980,
paras. 51-54.
90 Campbell and Fell v. the
United Kingdom, 28 June
1984, para. 87.
91 Albert and Le Compte
v. Belgium, 10 February
1983, para. 34, and H
v. Belgium, 30 Novem-
ber 1987, para. 54.
92 B. v. the United Kingdom,
decision of 14 September
1999.
21
admissible a case concerning a rule which provided
that all cases involving child custody in some court
proceedings, excluded both the press and the pub-
lic, whereas similar proceedings involving children in
other courts admitted both the press and some
members of the public such as close family who
were not parties. In its judgment, delivered on
24 April 2001, the Court found that there had been
no violation.
22
7. What is meant by pro-
nounced publicly?
Article 6 states that judgment shall be pro-
nounced publicly. This provision is not subject to
any exceptions of the kind permitted under the rule
that hearings should be held in public (see above). It
is however also intended to contribute to a fair trial
through public scrutiny.
The Court has stated that "pronounced pub-
licly" does not necessarily mean that the judgment
has always to be read out in court. In the case of
Pretto and others v. Italy the Court declared that
it considers that in each case the form of publicity to be
given to the "judgment" under the domestic law of the
respondent State must be assessed in the light of the
special features of the proceedings in question and by
reference to the object and purpose of Article 6 (1).
93
In this case the Court held that, having regard
to the appeal court's limited jurisdiction, depositing
the judgment in the court registry, which made the
full text of the judgment available to everyone, was
sufficient to satisfy the requirement of being "pro-
nounced publicly".
Further, the Court held in Axen v. the Federal Re-
public of Germany
94
that public oral delivery of a judg-
ment of the Supreme Court was unnecessary given
that the judgments of the lower courts had been
pronounced publicly.
Also, in the Sutter v. Switzerland
95
case, the Court
held that public delivery of a decision of an appeal
military court was not necessary, as public access to
that decision was ensured by other means, espe-
cially the possibility of seeking a copy of the judg-
ment from the court registry and its subsequent
publication in an official collection of case-law.
The above mentioned cases all concerned
judgments from hearings in higher instances of the
judicial system, and the Court held that there was
no violation in these cases. However, in the cases of
Werner v. Austria
96
and Szucs v. Austria,
97
where neither
was judgment given in public by the courts of first
instance and the courts of appeal, nor were the full
texts of their judgments openly available to the
public in their registries, and access was limited to
those with a "legitimate interest", the Court found
that there had been a violation of Article 6.
The Court also found a violation in Campbell and
Fell v. the United Kingdom,
98
where in prison discipli-
nary hearings the Board of Visitors did not pro-
nounce their judgment publicly and also took no
steps to make the decision public.
93 Pretto and others v. Italy,
8 December 1983,
para. 26.
94 Axen v. the Federal Re-
public of Germany, 29
June 1982, para. 32.
95 Sutter v. Switzerland,
22 February 1984,
para. 34.
96 Werner v. Austria, 24 No-
vember 1997.
97 Szucs v. Austria, 24 No-
vember 1997.
98 Campbell and Fell v. the
United Kingdom, 28 June
1984, para. 92.
23
8. What is the meaning of
the reasonable time guar-
antee?
Article 6 guarantees to everyone a hearing
within a reasonable time. The Court has stated that
the purpose of this guarantee is to protect "all par-
ties to court proceedings... against excessive procedural de-
lays".
99
The guarantee further "underlines the
importance of rendering justice without delays which might
jeopardise its effectiveness and credibility".
100
The meaning
of the reasonable time requirement is therefore to
guarantee that within a reasonable time and by
means of a judicial decision, an end is put to the in-
security into which a person finds himself/herself as
to his/her civil law position or on account of a crimi-
nal charge against him/her: this is in the interest of
the person in question as well as of legal certainty.
The time to be taken into consideration starts
running with the institution of proceedings in civil
cases, and in criminal cases with the charge.
101
Time
ceases to run when the proceedings have con-
cluded at the highest possible instance, i.e. when
the determination becomes final.
102
The Court will
examine the length of proceedings from the date on
which a Contracting State recognised the right to in-
dividual petition but will take into account the state
and progress of the case at that date.
103
The Court has established in its case-law that
when assessing whether a length of time can be con-
sidered reasonable, the following factors should be
taken into account: the complexity of the case, the
conduct of the applicant, the conduct of the judicial
and administrative authorities of the State, and what
is at stake for the applicant.
104
The Court has regard to the particular circum-
stances of the case, and has not established an ab-
solute time-limit. In some cases the Court makes an
overall assessment rather then referring directly to
the above-mentioned criteria.
Complexity of the case
All aspects of the case are relevant in assessing
whether it is complex. The complexity may concern
questions of fact as well as legal issues.
105
The Court
has attached importance to e.g. the nature of the
facts that are to be established,
106
the number of
accused persons and witnesses,
107
international ele-
ments,
108
the joinder of the case to other cases,
109
and the intervention of other persons in the proce-
dure.
110
A case that is very complex may sometimes jus-
tify long proceedings. For example, in the case of
Boddaert v. Belgium,
111
six years and three months was
not considered unreasonable by the Court since it
99 Stögmüller v. Austria,
10 November 1969,
para. 5.
100 H v. France, 24 October
1989, para. 58.
101 Scopelliti v. Italy, 23 No-
vember 1993, para. 18,
and Deweer v. Belgium,
27 February 1980,
para. 42.
102 See e.g. Scopelliti v. Italy,
23 November 1993,
para. 18 and B v. Austria,
28 March 1990, para. 48.
103 Proszak v. Poland, 16 De-
cember 1997, paras. 30-31.
104 See e.g. Buchholz v. the
Federal Republic of Ger-
many, 6 May 1981, para.
49.
105 See Katte Klitsche de la
Grange v. Italy, 27 Octo-
ber 1994, para. 62, where
the case would have im-
portant repercussions on
national case-law and
environmental law.
106 Triggiani v. Italy, 19 Feb-
ruary 1991, para. 17.
107 Angelucci v. Italy, 19
February 1991, para. 15
and Andreucci v. Italy,
27 February 1992,
para. 17.
108 See e.g. Manzoni v. Italy,
19 February 1991,
para. 18.
109 Diana v. Italy, 27 Febru-
ary 1992, para. 17.
24
concerned a difficult murder enquiry and the parallel
progression of two cases. However, even in very
complex cases unreasonable delays can occur. In
the case of Ferantelli and Santangelo v. Italy
112
the
Court held that sixteen years was unreasonable in
the case, which concerned a complex, difficult mur-
der trial and which involved sensitive problems of
dealing with juveniles.
The conduct of the appli-
cant
If the applicant has caused a delay, this obvi-
ously weakens his complaint. However, an applicant
can not have it held against him/her that full use has
been made of the various procedures available to
pursue his/her defence. An applicant is not required
to co-operate actively in expediting the proceedings
which might lead to his/her own conviction.
113
If ap-
plicants try to expedite the proceedings, this will be
held in their favour but a failure to apply for the pro-
ceedings to be expedited is not necessarily cru-
cial.
114
The Court stated in Unión Alimentaria Sanders
S.A. v. Spain that the applicant's duty is only to "show
diligence in carrying out the procedural steps relevant to him,
to refrain from using delaying tactics and to avail himself of
the scope afforded by domestic law for shortening the pro-
ceedings".
115
In the case of Ciricosta and Viola v. Italy,
116
which
concerned an application to suspend works likely to
interfere with property rights, because the appli-
cants had requested at least 17 adjournments and
not objected to six others requested by other party,
the Court held that 15 years was not unreasonable.
In Beaumartin v. France,
117
however, where the appli-
cants had contributed to the delay by bringing the
case in the wrong court and in submitting pleadings
four months after lodging their appeal, the Court
held that the authorities were more at fault, the do-
mestic court taking over five years to hold the first
hearing and the respondent ministry taking 20
months to file its pleadings.
The conduct of the authori-
ties
Only delays that are attributable to the State
may be taken into account when determining when-
ever the reasonable time guarantee has been com-
plied with. The State is, however, responsible for
delays caused by all its administrative or judicial au-
thorities.
When dealing with cases concerning length of
110 Manieri v. Italy, 27 Febru-
ary 1992, para. 18.
111 Boddaert v. Belgium,
12 October 1992.
112 Ferrantelli and Santangelo
v. Italy, 7 August 1996.
113 Eckle v. the Federal Re-
public of Germany,
15 July1982, para. 82.
114 See e.g. Ceteroni v. Italy,
15 November 1996.
115 Unión Alimentaria Sand-
ers S.A. v. Spain,
para. 35.
116 Ciricosta and Viola
v. Italy, 4 Decem-
ber 1995.
117 Beaumartin v. France,
24 November 1994.
25
proceedings, the Court has had regard to the principle
of the proper administration of justice, namely, that
domestic courts are under a duty to deal properly with
the cases before them.
118
Decisions concerning ad-
journing for particular reasons or the taking of evi-
dence may therefore be of some importance. In Ewing
v. the United Kingdom,
119
the joining of three cases which
delayed the trial was not considered arbitrary or un-
reasonable or as causing undue delay giving account
to the due administration of justice.
The Court has made clear that the efforts of
the judicial authorities to expedite the proceedings
as much as possible play an important part in ensur-
ing that applicants receive the guarantees con-
tained within Article 6.
120
A special duty therefore
rests upon the domestic court to ensure that all
those who play a role in the proceedings do
their utmost to avoid any unnecessary delay.
Delays that have been held by the Strasbourg
organs to be attributable to the State include, in
civil cases, the adjournment of proceedings pending
the outcome of another case, delay in the conduct
of the hearing by the court or in the presentation or
production of evidence by the State, or delays by
the court registry or other administrative authori-
ties. In criminal cases, they include the transfer of
cases between courts, the hearing of cases against
two or more accused together, the communication
of judgment to the accused and the making and
hearing of appeals.
121
The Court held in the case of Zimmerman and
Steiner v. Switzerland that States have a duty to "organ-
ise their legal systems so as to allow the courts to comply with
the requirements of Article 6 (1) including that of trial within
a reasonable time".
122
In the above-mentioned case, the Court found
that where the reason for a delay was a long-term
backlog of work in the State's court system, there
was a violation of the reasonable time guarantee in
Article 6 as the State had not taken adequate meas-
ures to cope with the situation. Adequate measures
can include the appointment of additional judges or
administrative staff. However, a violation will not
normally be found where the backlog is only tempo-
rary and exceptional and the State has taken neces-
sary remedial action reasonably promptly. When
making this assessment the Court is prepared to
take into account the political and social back-
ground in the State concerned.
123
What is at stake for the
applicant
Because what is at stake for the applicant is
taken into consideration when assessing whether
the reasonable time guarantee has been met, crimi-
nal proceedings will generally be expected to be pur-
sued more expeditiously than civil, particularly
where an accused person is held in pre-trial deten-
118 Boddaert v. Belgium,
12 October 1992,
para. 39.
119 Ewing v. the United King-
dom, 56 DR 71.
120 See e.g. Vernillo
v. France, 20 February
1991, para. 38.
121 See e.g. Zimmerman and
Steiner v. Switzerland,
13 July 1983, Guincho
v. Portugal, 10 July 1984
and Buchholz v. the Fed-
eral Republic of Ger-
many, 6 May 1981.
122 Zimmerman and Steiner
v. Switzerland, 13 July
1983, para. 29.
123 See e.g. Milasi v. Italy,
25 June 1987, para. 19
and Unión Alimentaria
Sanders S.A. v. Spain, 7
July 1989, para. 38.
26
tion. The reasonable time requirement under Arti-
cle 6 is closely linked to the reasonable time re-
quirement under Article 5 (3).
124
The Court has
explained that if the proceedings are unduly pro-
longed, pre-trial detention will become unlawful. De-
tention can not be considered as being for the
purpose set out in Article 5 (3) if the time framework
is no longer reasonable. The Court has set out in
several cases, most recently in Jablonski v Poland,
125
the principles that must be applied by a judge in re-
lation to the authorisation of pre-trial detention in
connection with the length of time it takes a case to
come to trial. A reasonable suspicion, which must be
based on objectively verifiable facts, that a person
has committed an offence is always a necessary ele-
ment of detention under Article 5 (1) c and Arti-
cle 5 (3). It is however not in itself sufficient to
justify pre-trial detention, even where a person has
been caught in flagrante delicto. This would be a vio-
lation of Article 6 (2) (the presumption of inno-
cence, see below). Objectively verifiable grounds to
support the deprivation of liberty such as a fear of
absconding, or interfering with witnesses or evi-
dence must also be produced. The safeguards of
regular review contained in Article 5 (3) require the
judge who authorises the prolonged detention to be
satisfied on each occasion that relevant and suffi-
cient reasons to justify a deprivation of liberty con-
tinue to exist. It is not sufficient for the judge to be
satisfied that they existed at the time of the original
detention, that the case is still not ready to come to
trial and that the delay is reasonable. It is of course
clear that if the judge considers that the delays are
not reasonable the detention automatically be-
comes unlawful and the detainee must be released.
In any event in order to justify prolonged detention
judges will also need to show that they have satis-
fied themselves that there is no alternative measure
less severe than detention (for example a measure
restricting freedom of movement) which could meet
any concerns of the prosecutor. In Jablonski v. Poland
the Court found that, although the applicant's con-
duct contributed to the prolongation of the pro-
ceedings, it did not account for the entire length
(over five years) for which the authorities had to
bear responsibility. Both Article 5 and Article 6 were
violated in this case.
Going back to the reasonable time requirement
in Article 6 in relation to civil proceedings, these
may also call for expedition on the part of the au-
thorities, especially where the proceedings are criti-
cal to the applicant and/or have a particular quality
or irreversibility.
126
The following are some exam-
ples:
ä Child care cases. In Hokkanen v. Finland the
Court stated that "... it is essential that custody
cases be dealt with speedily".
127
In Ignaccolo-Zennide
v. Romania
128
the Court emphasised that deci-
sions about children must not be determined
by the mere effluxion of time.
124 Article 5 (3) stipulates in
relevant parts that Every-
one arrested or detained
in accordance with the
provisions of paragraph
1.c of the Article shall be
brought promptly by a
judge or other officer
authorised by law to exer-
cise judicial power and
shall be entitled to trial
within a reasonable time
or to release pending
trial.
125 Jablonski v. Poland,
21 December 2000.
126 H v. the United Kingdom,
8 July 1988, para. 85.
127 Hokkanen v. Finland,
23 September 1994,
para. 72.
128 Ignaccolo-Zenide v. Ro-
mania, 25 January 2000.
27
ä Employment disputes. In Obermeier v. Austria the
Court declared that "... an employee who considers
that he has been wrongly suspended by his employer
has an important personal interest in securing the ju-
dicial decision on the lawfulness of that measure
promptly."
129
ä Personal injury cases. In the case of Silva Pontes
v. Portugal
130
the Court stated there was a need
for special diligence where the applicant was
claiming compensation for serious injuries in a
road traffic accident.
ä Other cases where speed is obviously of the
essence. In X v. France,
131
the applicant con-
tracted HIV from an infected blood transfusion
and instituted compensation proceedings
against the State. With regards to the appli-
cant's condition and life expectancy, the Court
held that the proceedings that lasted for two
years were unreasonably long. The domestic
courts had failed to use their power to expedite
the hearing. In A and others v. Denmark, the Court
held that "... the competent administrative and judi-
cial authorities were under a positive obligation under
Article 6 (1) to act with the exceptional diligence re-
quired by the court's case-law in disputed of this na-
ture".
132
129 Obermeier v. Germany,
28 June 1990, para. 72.
130 Silva Pontes v. Portugal,
23 March 1994, para. 39.
131 X v. France, 23 March
1991, paras. 47-49.
132 A and others v. Denmark,
8 February 1996,
para. 78.
28
9. What is required for a
tribunal to be (1) independ-
ent and (2) impartial?
Article 6 states that everyone is entitled to a
hearing by an independent and impartial tribunal es-
tablished by law. The two requirements of independ-
ence and impartiality are interlocked, and the Court
often considers them together.
Independence
Courts will normally be considered to be inde-
pendent and national judges will rarely be called
upon to decide whether a tribunal is independent,
except in situations where they are being asked to
consider the decisions of non-judicial bodies. Where
bodies which are not courts exercise functions
which are determinative of civil rights or criminal
charges they must comply with the requirements of
independence and impartiality.
When deciding whether a tribunal is independ-
ent, the European Court considers:
ä the manner of appointment of its members,
ä the duration of their office,
ä the existence of guarantees against outside
pressures and
ä the question whether the body presents an ap-
pearance of independence.
133
The Court has held that the tribunal must be in-
dependent of both the executive and the parties.
134
Composition and appointment
The Court has held that the presence of judicial
or legally-qualified members in a tribunal is a strong
indication of its independence.
135
In the case of Sramek v. Austria,
136
the Court
found that the tribunal in question (the Regional
Real Property Transactions Authority) was not inde-
pendent. The government was a party to the pro-
ceedings, and the representative of the government
was the hierarchical supervisor of the rapporteur of
the tribunal.
The fact that the members of a tribunal are ap-
pointed by the executive, does not in itself violate
the Convention.
137
For there to be a violation of Ar-
ticle 6, the applicant would need to show that the
practice of appointment as a whole was unsatisfac-
tory or that the establishment of the particular tri-
bunal deciding a case was influenced by motives
suggesting an attempt to influence its outcome.
138
Further, if the members of a tribunal are ap-
pointed for fixed terms, this is seen as a guarantee
of independence. In the case of Le Compte v. Bel-
gium,
139
fixed six-year terms for Appeal Council
133 See e.g. Campbell and
Fell v. the United King-
dom, 28 June 1984,
para. 78.
134 Ringeisen v. Austria,
16 July 1971, para. 95.
135 Le Compte v. Belgium,
23 June 1981, para. 57.
136 Sramek v. Austria, 22 Oc-
tober 1984.
137 Campbell and Fell v. the
United Kingdom, 28 June
1984, para. 79.
138 Zand v. Austria,
15 DR 70, para. 77.
139 Le Compte, Van Leuven,
De Meyere v. Belgium,
23 June 1981.
29
members was found to provide a guarantee of inde-
pendence. In Campbell and Fell v. the United Kingdom
140
Prison Board of Visitors members were appointed
for three years. This was considered rather short but
it was acknowledged that the posts were unpaid and
it was difficult to get volunteers, and it was not con-
sidered a violation of Article 6.
Appearances
Suspicions as to the appearance of independ-
ence must to some extent be objectively justified. In
the case of Belilos v. Switzerland,
141
a local "Police
Board" which adjudicated certain minor offences
consisted of only one member ­ a policeman acting
in his personal capacity. Although he was not subject
to orders, took an oath and could not be dismissed,
he was later to return to departmental duties and
would tend to be seen as a member of the police
force subordinate to superiors and loyal to col-
leagues, and it could therefore undermine the confi-
dence which a tribunal should inspire. There were
legitimate doubts as to the independence and or-
ganisational impartiality at the Police Board, which
did not satisfy the requirements of Article 6 (1).
Subordination to other authorities
The tribunal must have the power to give a
binding decision which can not be altered by a non-
judicial authority.
142
Courts martial and other mili-
tary disciplinary bodies have been found to violate
Article 6 in this context. The executive may issue
guidelines to members about the general perform-
ance of their functions, as long as any such guide-
lines are not in reality instructions as to how cases
are to be decided.
143
Impartiality
The Court held in Piersack v. Belgium that
whilst impartiality normally denotes absence of preju-
dice or bias, its existence or otherwise can, notably un-
der Article 6 (1) of the Convention, be tested in various
ways. A distinction can be drawn in this context be-
tween a subjective approach, that is endeavouring to as-
certain the personal conviction of a given judge in a
given case, and an objective approach, that is determin-
ing whether he offered guarantees sufficient to exclude
any legitimate doubt in this respect.
144
For subjective impartiality to be made out, the
Court requires proof of actual bias. Personal imparti-
ality of a duly appointed judge is presumed until
there is evidence to the contrary.
145
This is a very
strong presumption and in practice it is very difficult
to prove personal bias. No such claim has ever been
successful in Strasbourg in spite of frequent com-
plaints.
As to the objective test, the Court stated in Fey
v. Austria that
140 Campbell and Fell v. the
United Kingdom, 28 June
1984, para. 80.
141 Belilos v. Switzerland,
29 April 1988, paras. 66-
67.
142 See e.g. Findlay v. the
United Kingdom, 25 Feb-
ruary 1997, para. 77.
143 Campbell and Fell, 28
June 1984, para. 79.
144 Piersack v. Belgium,
1 October 1982, para. 30.
145 Hauschildt v. Denmark,
para. 47.
30
under the objective test, it must be determined whether,
quite apart from the judge's personal conduct, there are
ascertainable facts which may raise doubts as to his im-
partiality. In this respect even appearances may be of
certain importance. What is at stake is the confidence
which the courts in a democratic society must inspire in
the public and, above all, as far as criminal proceedings
are concerned, in the accused. This implies that in de-
ciding whether in a given case there is a legitimate rea-
son to fear that a particular judge lacks impartiality,
the standpoint of the accused is important but not deci-
sive. What is determinant is whether this fear can be
held to be objectively justified.
146
The Court has made clear that any judge in
respect of whom there is a legitimate reason to
fear lack of impartiality must withdraw.
147
The existence of national procedures for ensur-
ing impartiality are also relevant here. Whilst the
Convention does not expressly stipulate that there
must be mechanisms whereby parties to proceed-
ings are able to challenge impartiality, violations of
Article 6 are more likely to occur if they are absent. If
a defendant raises the issue of impartiality, it
must be investigated unless it is "manifestly de-
void of merit".
148
The issue has been raised most often in the
Strasbourg courts in the context of racism. Both the
principles set out in the cases below apply equally to
other kinds of prejudice or impartiality.
In the case of Remli v. France,
149
a statement
made by one of the jurors saying "What's more, I'm
a racist" was overheard by a third person. The do-
mestic court decided that it was not able to take for-
mal note of events alleged to have occurred out of
its presence. The European Court noted that the
national court had not made any check to verify the
impartiality, thereby depriving the applicant of the
opportunity of remedying a situation that was con-
trary to the requirements of the Convention. The
Court therefore found a violation of Article 6.
Where the domestic court has clearly con-
ducted a proper inquiry into an allegation of
bias and concluded that the trial in question was
fair, the European Court will be reluctant to ques-
tion its conclusion. In the case of Gregory v. the United
Kingdom
150
a note was passed to the judge from the
jury stating "Jury showing racial overtones. 1 mem-
ber to be excused." The judge showed the note to
the prosecution and the defence. He also warned
the jury to try the case according to the evidence
and put aside any prejudice. The Court held that
this was sufficient for Article 6 purposes. It found it
significant that the defence counsel had not
pressed for discharge of the jury or for asking them
in open court whether they were capable of con-
tinuing and returning a verdict on the evidence
alone. The trial judge had made a clear, detailed and
forceful statement instructing the jury to put out of
their minds "any thoughts or prejudice of one form
or another". The Court further held in comparison
146 Fey v. Austria, 24 Febru-
ary 1993, para. 30.
147 Piersack v. Belgium,
para. 30, Nortier para. 33,
Hauschildt, para. 48.
148 Remli v. France,
30 March 1996, para. 48.
149 Remli v. France,
30 March 1996.
150 Gregory v. the United
Kingdom, 25 February
1997.
31
to the case of Remli v. France, that
In that case, the trial judges failed to react to an allega-
tion that an identifiable juror had been overheard to
say that he was racist. In the present case, the judge
was faced with an allegation of jury racism which, al-
though vague and imprecise, could not be said to be de-
void of substance. In the circumstances, he took
sufficient steps to check that the court was established
as an impartial tribunal within the meaning of Arti-
cle 6 (1) of the Convention and had offered sufficient
guarantees to dispel any doubts in this regard.
151
In the later case of Sander v. United Kingdom how-
ever the Court considered that where the judge's
response to similar evidence of racism
amongst the jury had been inadequate a viola-
tion of Article 6 had occurred. The Court stated that
... the judge should have reacted in a more robust man-
ner than merely seeking vague assurances that jurors
could set aside their prejudices and try the case solely
on the evidence. By failing to do so, the judge did not
provide sufficient guarantees to exclude any objectively
justified or legitimate doubts as to the impartiality of
the court. It follows that the court that condemned the
applicant was not impartial from an objective point of
view.
152
Differing roles of the judge
A lot of the case-law on impartiality concerns
situations where a judge plays different procedural
roles in the course of the proceedings. In the case
of Piersack v. Belgium
153
the judge who tried the appli-
cant had previously been a member of the depart-
ment which had investigated the applicant's case
and initiated the prosecution against him. The Court
found a violation of Article 6.
In Hauschildt v. Denmark,
154
the Court found a vio-
lation where the presiding judge had taken decisions
on pre-trial detention. This had been subject to a
special feature, meaning that on nine occasions in
deciding on remand he referred to a "particularly
strong suspicion" of the applicant's guilt. The Court
held that the difference with the issue to be settled
at the trial was tenuous and the applicant's fear ob-
jectively justified.
Another example is that of the case of Ferrantelli
and Santangelo v. Italy,
155
where the Court found a
breach of Article 6 when the presiding judge on an
appeal court had been involved in convicting co-
accused in another judgment. This judgment con-
tained numerous references to the applicants and
their respective involvement in the case. Furthermore,
the judgment of the appeal court convicting the appli-
cants cited numerous extracts from the previous judg-
ment concerning the applicants' co-accused. The
Court found these circumstances sufficient to hold
the applicants' fears as to the lack of impartiality of
the appeal court to be objectively justified.
Oberschlick No. 1 v. Austria
156
concerned proceed-
ings before the court of appeal, where three judges
had participated also in the judgment in the first in-
151 Gregory v. the United
Kingdom, 25 February
1997, para. 49.
152 Sander v. the United
Kingdom, 9 May 2000.
153 Piersack v. Belgium,
1 October 1982.
154 Hauschildt v. Denmark,
24 May 1984.
155 Ferrantelli and Santangelo
v. Italy, 7 August 1996.
156 Oberschlick No. 1
v. Austria, 23 May 1991.
32
stance court. The European Court found this to be a
violation of the right to an impartial tribunal.
In De Haan v. the Netherlands
157
the judge presid-
ing over an appeals tribunal was called upon to de-
cide on an objection against a decision for which he
was himself responsible. The Court found that the
applicant's fears regarding the objective impartiality
of the presiding judge were justified, and found a
violation of Article 6.
In a recent case against Switzerland,
158
the
Court found a violation of Article 6 (1) where the ap-
plicant was involved in proceedings in a court which
was composed of five judges. Two were part-time
judges who had acted as representative of the other
party in separate proceedings brought by the same
applicant. The Court noted that legislation and prac-
tice on part-time judiciary could in general be
framed so as to be compatible with Article 6, and
what was at stake was solely the manner in which the
proceedings were conducted in the case. While
there was no material link between the applicant's
case and the separate proceedings in which the two
lawyers had acted as legal representatives, there was
in fact an overlap in time. The applicant could there-
fore have reason for concern that the judge in ques-
tion would continue to see him as the opposing
party and this situation could have raised legitimate
fears that the judge was not approaching the case
with the requisite impartiality.
The mere fact that the judge has previously
been involved with the applicant is not sufficient to
in itself violate Article 6 (1). Special features, as
those in the cases described above, are required
beyond the judge's knowledge of the file.
Rehearings
If a decision is quashed on appeal and returned
to the first instance for a new decision, there is not
an automatic violation of Article 6 because the
same body, with or without the same membership,
decides the matter again.
159
In the case of Thomann
v. Switzerland,
160
the applicant was re-tried by the
court that had convicted him in absentia. The Court
did not consider that this disclosed a violation of
Article 6 since the judges would be aware that they
had reached their first decision on limited evidence
and would undertake fresh consideration of the
case on the comprehensive, adversarial basis.
Specialist tribunals
The Court recognises that there may be good
reasons for holding hearings before special adjudi-
catory bodies where specialist technical knowledge
is required. This may involve appointing tribunal
members who are practitioners in the specialist field
in question, for example medical disciplinary tribu-
nals. Where there are direct links between members
of the tribunal and any of the parties those mem-
157 De Haan v. the Nether-
lands, 26 August 1997.
158 Wettstein v. Switzerland,
21 December 2000.
159 Ringeisen v. Austria,
16 July 1971, para. 97.
160 Thomann v. Switzerland,
10 June 1996.
33
bers should stand down. Once a legitimate doubt is
raised, it may not be enough to point to the pres-
ence of judicial members or a judicial casting vote.
The case of Langborger v. Sweden
161
concerned a hear-
ing in the Housing and Tenancy Court. This was
made up of two professional judges and two lay as-
sessors nominated by property owners and tenant
association. The lay assessors had close links with
the two associations which sought to maintain a
clause the applicant was challenging. Legitimate
fear that their interests were contrary to his own, it
was not sufficient that the judicial president had the
casting vote.
Juries
The above-mentioned principles apply equally
to juries.
Waiver
The Court has not put down clear guidelines as
to the extent to which an accused may waive his
right to an independent and impartial tribunal. The
Court has however stated, that to the extent that
waiver is possible it must be limited and minimum
guarantees must remain that can not depend on the
parties alone. The waiver must be established in
an unequivocal manner. The parties must have
been aware of the doubts as to impartiality, have
had the opportunity to raise the issue and have de-
clared their satisfaction with the composition of the
court. A mere failure to object will not suffice to
establish waiver. The Court held in Pfeiffer and
Plankl v. Austria
162
that a failure to object to two court
judges who had been investigating judges and dis-
qualified to sit as judges was not sufficient in order
to be considered as a waiver. In Oberschlick (No. 1)
v. Austria
163
the presiding judge over an appeal court
had participated in previous proceedings and was
not supposed to sit under the Criminal Procedure
Code. The applicant did not challenge the judge's
presence, but he was unaware of the fact that two
other judges were similarly disqualified. The Court
found that he had not waived his right to an impar-
tial tribunal.
Established by law
As to the requirement that a tribunal shall be
established by law, the Commission held in Zand
v. Austria that
It is the object and purpose of the clause in Article 6 (1)
requiring that the courts shall be "established by law"
that the judicial organisation in a democratic society
must not depend on the discretion of the Executive, but
that it should be regulated by law emanating from Par-
liament. However, this does not mean that delegated
161 Langborger v. Sweden, 22
June 1989.
162 Pfeiffer and Plankl
v. Austria, 25 February
1992.
163 Oberschlick (No. 1)
v. Austria, 23 May 1991.
34
legislation is as such unacceptable in matters concern-
ing the judicial organisation. Article 6 (1) does not re-
quire the legislature to regulate each and every detail in
this field by formal Act of Parliament, if the legislature
establishes at least the organisational framework for the
judicial organisation.
164
164 Zand v. Austria,
15 DR 70.
35
10. What does the notion
of fair hearing include?
Article 6 states that everyone is entitled to a
fair hearing. This expression incorporates many as-
pects of the due process of the law, such as the right
to access to court, a hearing in the presence of the
accused, freedom from self-incrimination, equality
of arms, the right to adversarial proceedings and a
reasoned judgment.
The judge's duty is to ensure that all parties to
a dispute receive the "fair hearing" to which the
Convention entitles them.
Access to court
There is no express guarantee of the right of
access to a court in the text of Article 6, but the Eu-
ropean Court has held that this provision secures to
everyone the right to have any claim relating to his/
her civil rights and obligations brought before a
court or tribunal. Article 6 embodies the right to a
court, of which the right to access, that is the right
to institute proceedings before courts in civil mat-
ters, constitutes one aspect only.
The Court held in Golder v. the United Kingdom
that
were Article 6 (1) to be understood as concerning exclu-
sively the conduct of an action which had already been
initiated before a court, a Contracting State could,
without acting in breach of that text, do away with its
courts, or take away their jurisdiction to determine cer-
tain classes of civil actions and entrust it to organs de-
pendent of the Government... It would be
inconceivable, in the opinion of the Court, that Article
6 (1) should describe in detail the procedural guaran-
tees afforded to parties in a pending lawsuit and should
not first protect that which alone makes it in fact possi-
ble to benefit from such guarantees, that is, access to
court. The fair, public and expeditious characteristics of
judicial proceedings are of no value at all if there are no
judicial proceedings.
165
However, the right of access to court is not
an absolute right. The Court went on to state in
Golder v. the United Kingdom that its very nature calls
for regulation (which may vary in time and place ac-
cording to the needs and resources of the commu-
nity and of individuals) by the State, though such
regulation must never injure the substance of the
right nor conflict with other rights enshrined in the
Convention.
In its case-law the Court has further held that
any limitation will only be compatible with Article 6
ä if it pursues a legitimate aim
and
ä if there is a reasonable relationship of propor-
165 Golder v. the United
Kingdom, 21 February
1975, para. 35.
36
tionality between the means employed and the
aim sought to be achieved.
166
The case of Golder v. the United Kingdom con-
cerned a prisoner who had been refused permission
to contact his solicitor with a view to bringing a civil
action for libel against a prison officer. The Court
held that this was a violation of Article 6 ­ the right
of access to court must not only exist, it must also
be effective. The Court has also held that the inabil-
ity of a prisoner to have confidential out of hearing
consultations with a lawyer denied him effective ac-
cess to court.
167
In some cases access to court is refused be-
cause of the nature of the litigant. The Court has
acknowledged that limitations on access for minors,
persons of unsound mind, bankrupts and vexatious
litigants do pursue a legitimate aim.
168
In the case of
Canea Catholic Church v. Greece,
169
a court had ruled
that the applicant church did not have legal person-
ality in Greek law. This led to the dismissal of action
brought to assert its property rights. The European
Court stated however, that this had impaired the
substance of the right to a court, and that there had
been a violation of Article 6. The Court has also
found a violation where legal proceedings could only
be taken by another body in spite of the applicants'
direct interest in the proceedings. In the case of
Philis v. Greece,
170
the applicant who was an engineer
by profession sought remuneration for work done.
This could only be pursued by the Technical Cham-
ber of Greece. The Court held that while this proce-
dure might have provided engineers with the benefit
of experienced legal representation for little ex-
pense, it was insufficient to justify removing the ap-
plicant's capacity to pursue and act in his own
claim.
In Airey v. Ireland, a wife who was indigent was
refused legal aid to bring proceedings to separate
from her husband. The Court held that
Article 6 (1) may sometimes compel the State to pro-
vide for the assistance of a lawyer when such assistance
proves indispensable for an effective access to court ei-
ther because legal representation is rendered compul-
sory, as is done by the domestic law of certain
Contracting States for various types of litigation, or by
reason of the complexity of the procedure or of the
case.
171
The Court found that the applicant in this case
did not enjoy an effective right of access to the High
Court for the purpose of petitioning for a decree of
judicial separation.
The right to access to court may sometimes be
violated where an immunity exists that is effec-
tively preventing an action taking place. In the case
of Osman v. the United Kingdom,
172
which concerned a
public policy immunity from suit in negligence for
the police acting in an investigative or preventative
capacity, the Court held that the aim of the
exclusionary rule might be accepted as legitimate
since it was directed to the maintenance of police
166 Ashingdane v. the United
Kingdom, 28 May 1985,
para. 57.
167 Campbell and Fell v. the
United Kingdom, 28 June
1984, paras. 111-113.
168 M v. the United Kingdom,
52 DR 269.
169 Canea Catholic Church
v. Greece, 16 December
1997.
170 Philis v. Greece, 27 Au-
gust 1991.
171 Airey v. Ireland, 9 Octo-
ber 1979, para. 26.
172 Osman v. the United
Kingdom, 28 October
1998.
37
efficiency in the prevention of disorder and crime.
Nevertheless, the application of the rule in this case
without further inquiry into competing public inter-
est considerations served to confer a blanket immu-
nity on the police for their acts and omissions
during the investigation and suppression of crime
and amounted to an unjustifiable restriction on an
individual's right to have a determination on the
merits of a claim in deserving cases. The Court
therefore found a violation of Article 6.
However, in Ashingdane v. the United Kingdom,
173
which concerned an immunity in statute barring civil
actions by mental patients against staff or health
authorities without leave on grounds of bad faith or
lack of reasonable care, the Court held that the re-
strictions imposed in the case, in limiting any liabil-
ity of the responsible authorities, did not impair the
very essence of the applicant's right to court or
transgress the principle of proportionality. The
Court further held in this case that the applicant
could nonetheless take proceedings for negligence.
The Court may also find a violation of the right
to access to court where the domestic court or tri-
bunal in question does not have full jurisdiction
over the facts and legal issues in the case before it.
When assessing whether there has been a violation,
the Court will take into account the subject-matter
of the dispute, whether the court may, even with
limited competence, adequately review the dis-
puted issues, the manner in which that decision was
arrived at, and the content of the dispute, including
the desired and actual grounds of the action or ap-
peal.
In the case of Bryan v. the United Kingdom,
174
the
issue at stake was enforcement proceedings for
breach of planning permission. The Court held that
even though the appeal to the High Court was re-
stricted to points of law and therefore its jurisdiction
over the facts was limited, this did not amount to a
violation of Article 6. The Court stressed the special-
ised character of planning, which was considered to
be typical example of the exercise of discretionary
judgment of the authorities in the regulation of citi-
zen's conduct. The scope of review of the High
Court was therefore held to be sufficient.
However, in the case of Vasilescu v. Romania
175
the Court did find a violation of Article 6, where the
domestic courts did not have jurisdiction to exam-
ine a claim made for the restitution of property con-
fiscated during the Communist regime. The Court
accepted the interpretation of domestic procedural
law by the Supreme Court of Justice of Romania,
which ruled that no court in fact had jurisdiction to
rule on the applicant's claim. The only available pro-
cedures were before the Procurator General's De-
partment. The Court in Strasbourg found that
Department not to be an independent tribunal
within the meaning of Article 6 (1).
173 Ashingdane v. the United
Kingdom, 28 May 1985.
174 Bryan v. the United King-
dom, 22 November 1995,
para. 45.
175 Vasilescu v. Romania,
22 May 1998.
38
Presence at proceedings
The Court has held that the accused in criminal
proceedings must be present at the trial hearing.
176
The object and purpose of Article 6 (1) and 6 (3) c-e
presuppose the presence of the accused.
As regards civil cases, the requirement that the
parties be present at the proceedings only extends
to certain kinds of cases, such as cases which in-
volve an assessment of a party's personal conduct.
A criminal trial in the absence of the ac-
cused or a party may be allowed in certain excep-
tional circumstances, if the authorities have acted
diligently but not been able to notify the relevant
person of the hearing
177
and may be permitted in the
interests of the administration of justice in some
cases of illness.
178
A party may waive the right to be present at an
oral hearing, but only if the waiver is unequivocal
and "attended by minimum safeguards commensu-
rate to its importance".
179
However, if the accused in
a criminal case waive their right, they must still be
permitted legal representation.
180
In the case of F.C.B. v. Italy,
181
an Italian court
held a retrial in the applicant's absence although in-
formed by his counsel that he was detained abroad.
The Court stated that the applicant had not ex-
pressed the wish to waive attendance and did not
accept the argument submitted by the Government
that he had used deliberate delaying tactics in not
providing the Italian authorities with his address.
The Italian authorities were aware that the applicant
was subject to proceedings abroad and it was hardly
compatible with the diligence required in ensuring
defence rights were effectively exercised to con-
tinue trial without taking further steps to clarify the
position.
The right of a person to be present at the
appeal will depend on the nature and scope of the
hearing. The Court considers that a hearing in the
presence of the accused is not as crucial at an ap-
peal hearing as it is at the trial. If the appeal court
will only consider points of law, a hearing in the
presence of the accused will not be necessary. The
situation is different, however, if the appeal court
will also consider the facts of the case. In determin-
ing whether the accused has a right to be present,
the Court will take into consideration what is at
stake for him/her and the appeal court's need for
the accused's presence to determine the facts.
In the case of Kremzow v. Austria,
182
the applicant
was excluded from a hearing on points of law, and
the Court found that his presence was not required
by Article 6 (1) or 6 (3) c since his lawyer was able
to attend and make points on his behalf. However,
the Court found a violation when the applicant was
excluded from the hearing of the appeal on sen-
tence, which involved an increase in sentence to life
imprisonment and committal to special prison and a
176 Ekbatani v. Sweden,
26 May 1988, para. 25.
177 Colozza v. Italy, 22 Janu-
ary 1985.
178 See e.g. Ensslin et al v.
the Federal Republic of
Germany, 14 DR 64,
where the applicants
were unfit to attend after a
hunger strike. The Com-
mission emphasised how-
ever the fact that the
applicants lawyers were
present.
179 Poitrimol v. France,
23 November 1993.
180 See e.g. Pelladoah v. the
Netherlands, 22 Septem-
ber 1994, where the
Court found a violation of
Article 6 (1) and
Article 6 (3) c.
181 F.C.B. v. Italy, 28 August
1991.
182 Kremzow v. Austria, 21
September 1993.
39
ruling on the motive for the crime which the jury had
been unable to establish. The Court held that since
the assessment of the applicant's character, state of
mind and motivation were significant to the pro-
ceedings, and there was much at stake for the appli-
cant, he should be able to be present and
participate as well as his lawyer.
Freedom from self-incrimi-
nation
The Court has held that the right to a fair trial in
criminal cases include "the right of anyone charged with
a criminal offence... to remain silent and not to contribute to
incriminating himself".
183
In the case of Saunders v. the United Kingdom, the
Court stated that
the Court recalls that, although not specifically men-
tioned in Article 6 of the Convention, the right to si-
lence and the right not to incriminate oneself are
generally recognised international standards which lie
at the heart of the notion of a fair procedure under Ar-
ticle 6. Their rationale lies, inter alia, in the protection
of the accused against improper compulsion by the au-
thorities thereby contributing to the avoidance of mis-
carriages of justice and to the fulfilment of the aims of
Article 6... The right not to incriminate oneself, in par-
ticular, presupposes that the prosecution in a criminal
case seek to prove their case against the accused without
resort to evidence obtained through methods of coercion
or oppression in defiance of the will of the accused. In
this sense the right is closely linked to the presumption
of innocence contained in Article 6 (2) of the Conven-
tion.
The right not to incriminate oneself is primarily con-
cerned, however, with respecting the will of an accused
person to remain silent. As commonly understood in
the legal systems of the Contracting Parties to the Con-
vention and elsewhere, it does not extend to the use in
criminal proceedings of material which may be obtained
from the accused through the use of compulsory powers
but which has an existence independent of the will of the
suspect such as, inter alia, documents acquired pursu-
ant to a warrant, breath, blood and urine samples and
bodily tissue for the purpose of DNA testing.
184
This case concerned a company director, who
was required by law to answer questions by govern-
ment inspectors regarding a company take-over on
pain of criminal sanction. The transcripts of the in-
terview was later admitted as evidence against him
at a trial where he was convicted. The Court consid-
ered this to be a violation of Article 6.
The Court has chosen a different view when it
comes to rules permitting the drawing of adverse in-
ferences form the silence of an accused during inter-
rogation or trial. The Court held in the case of John
Murray v. the United Kingdom
185
that "the right to si-
183 Funke v. France, 25 Feb-
ruary 1993, para. 44.
184Saunders v. the United
Kingdom, 17 December
1996, paras. 68-69.
185John Murray v. the United
Kingdom, 8 February
1996.
40
lence" is not an absolute right. Even though it is in-
compatible with this immunity to base a conviction
solely or mainly on the accused's silence or on a re-
fusal to answer questions, it is obvious that this
privilege does not prevent an accused's silence be-
ing taken into account in situations which clearly call
for an explanation. The Court found in this case that
the legislation applied did not violate Article 6. The
applicant had not been subject to direct coercion,
being neither fined nor threatened with imprison-
ment. The Court further found that the use of infer-
ences was an expression of the common sense
implication drawn where an accused fails to provide
an innocent explanation for his actions or behaviour.
There were sufficient safeguards to comply with fair-
ness and the general burden of proof remained with
the prosecution who had to establish a prima facie
case before the inference could be of relevance.
The Court held however in the case of Condron v.
the United Kingdom
186
that the jury needs to be prop-
erly directed by the trial judge when deciding
whether or not to draw an adverse inference from an
applicant's silence, in order not to constitute a vio-
lation of Article 6.
Equality of arms and the
right to adversarial pro-
ceedings
The right to a fair hearing incorporates the
principle of equality of arms.
This means that everyone who is a party to
proceedings must have a reasonable opportu-
nity of presenting his case to the court under
conditions which do not place him/her at a
substantial disadvantage vis--vis his/her op-
ponent. A fair balance must be struck between the
parties.
187
The right to a fair hearing also incorporates the
right to adversarial proceedings, which means in
principle the opportunity for parties to a criminal or
civil trial to have knowledge of and comment on
all evidence adduced or observations filed.
188
In this context particular importance is to be at-
tached to the appearance of the fair administration
of justice.
189
These principles apply to both criminal and
civil proceedings.
In criminal cases, they overlap with some of
the specific guarantees of Article 6 (3), but are not
confined to those aspects of the proceedings. For
example, the Court held in the case of Bönisch v. Aus-
tria
190
that when an expert witness appointed by the
186Condron v. the United
Kingdom, 2 May 2000.
187See e.g. De Haes and
Gijsels v. Belgium,
24 February 1997.
188Ruiz-Mateos v. Spain,
23 June 1993, para. 63.
189 Borgers v. Belgium,
30 October 1991,
para. 24.
190Bönisch v. Austria, 6 May
1985.
41
defence is not accorded the same facilities as one
appointed by the prosecution or the court, there is
a violation of Article 6 (1).
Further, the Commission held in Jespers v. Bel-
gium,
191
that the equality of arms principle read to-
gether with Article 6 (3) b imposes an obligation
on prosecuting and investigating authorities to
disclose any material in their possession, or to
which they could gain access, which may assist
the accused in exonerating himself or in ob-
taining a reduction in sentence. This principle
extends to material which might undermine the
credibility of a prosecution witness. In Foucher
v. France
192
the Court held that where a defendant
who wished to represent himself was denied access
by the prosecutor to the case file and not permitted
copies of documents contained in it and thereby
was unable to prepare an adequate defence, this
was a violation of the principle of equality of arms
read together with Article 6 (3).
The case of Rowe and Davis v. the United King-
dom
193
concerned the trial of the two applicants and
a third man, who were charged with murder, assault
occasioning grievous bodily harm and three counts
of robbery. The prosecution relied substantially on
evidence given by a small group of people who were
living with the applicants, and that of the girlfriend
of one of the applicants. The three men were con-
victed of the charges, and the Court of Appeal up-
held the convictions.
During the applicants' trial at the first instance
the prosecution decided, without notifying the
judge, to withhold certain evidence on the grounds
of public interest. At the commencement of the ap-
plicants' appeal the prosecution notified the de-
fence that certain information had been withheld,
without revealing the nature of this material. Further,
on two occasions the Court of Appeal reviewed the
undisclosed evidence in ex parte hearings with sub-
missions from the prosecution but in the absence of
the defence. The Court decided in favour of non-dis-
closure.
The European Court pointed out that the enti-
tlement to disclosure of relevant evidence is not an
absolute right and that there may be competing in-
terests such as protecting witnesses or keeping se-
cret police methods of investigation of crime.
However, the only measures restricting the rights of
the defence which are permissible under Article 6
are those which are strictly necessary. The Court
held that the prosecution's assessment of the im-
portance of concealed information did not comply
with the principles of adversarial proceedings and
equality of arms. The procedure before the appeal
court was not sufficient to remedy the unfairness
that had been caused. This was because the judges
there were dependent for their understanding of the
possible relevance of the undisclosed material on
transcripts from the first trial and on the account of
the issues given to them by the prosecution alone.
191Jespers v. Belgium,
27 DR 61.
192Foucher v. France,
18 March 1997.
193Rowe and Davis v. the
United Kingdom, 16 Feb-
ruary 2000.
42
The Court accordingly found a violation of Arti-
cle 6 (1).
In civil proceedings, Article 6 will in certain cir-
cumstances require that the parties should be enti-
tled to cross-examine witnesses.
194
The principle of
equality of arms is also violated when a party is pre-
vented from replying to written submissions to the
national court made by counsel for the State.
195
In
Dombo Beheer B.V. v. the Netherlands
196
the applicant, a
limited company, instituted civil proceedings against
a bank to prove that there was an oral agreement
between it and the bank to extend certain credit fa-
cilities. Only two persons had been present at the
meeting where the agreement had allegedly been
reached, one person representing the applicant and
one person representing the bank.
However, only the person representing the
bank had been allowed by the domestic court to be
heard as a witness. The applicant company had been
denied the possibility of calling the person who had
represented it, because the court had identified him
with the applicant company itself.
The European Court however found that during
the relevant negotiations the two representatives
acted on an equal footing, both being empowered
to negotiate on behalf of their respective parties,
and it was difficult to see why they should not both
have been allowed to give evidence. The applicant
company was therefore put at a substantial disad-
vantage vis--vis the bank and there had been a vio-
lation of Article 6 (1).
However, the Court held in Ankerl v. Switzer-
land
197
that there was no violation of Article 6 (1).
This case also concerned the calling of witnesses,
and the applicant complained that the refusal of a
court to allow his spouse to give evidence on oath
in support of his claim in civil proceedings was a
breach of the principle of equality of arms, in light of
the fact that the applicant's opponent was able to
produce a witness who gave evidence on oath.
The Court held that it could not see how the
fact of the applicant's wife giving evidence on oath
could have influenced the outcome of the proceed-
ings. This was so since the court could have taken
into account statements made by Mrs Ankerl, the
fact that it did not appear that the court attached
any particular weight to the testimony by the appli-
cant's opponent, and the fact that the court relied
on other evidence than just the statements in issue.
The Court has also held that the principle of
equality of arms was violated, where the national
legislature of the State adopted legislation which
was aimed at ensuring the defeat of the applicant's
claim which was proceeding through the national
courts.
198
Finally, the case of Van Orshoven v. Belgium
199
concerned a medical doctor involved in disciplinary
proceedings. The applicant appealed against a deci-
sion to strike him off the register, but the court dis-
missed the appeal.
194X v. Austria, 42 CD 145.
195Ruiz-Mateos v. Spain,
23 June 1993.
196Dombo Beheer B.V.
v. the Netherlands,
27 October 1993.
197Ankerl v. Switzerland,
23 October 1996.
198Stran Greek Refineries
and Stratis Andreadis
v. Greece, 9 December
1994.
199Van Orshoven v. Bel-
gium, 25 June 1997.
43
He complained that at no stage of the pro-
ceedings before the appeal court had he been able
to reply to the submissions of the procurator gen-
eral, and these had not been communicated to him.
The Court held that, with regard being had to
what was at stake for the applicant and to the na-
ture of the submissions made by the procurator
general, the fact that it was impossible for Mr Van
Orshoven to reply to the submissions before the
end of the hearing was a breach of his right to
adversarial proceedings. This right, the Court
stressed, meant the opportunity for both parties to
a trial to have knowledge of and comment on all evi-
dence adduced or observations filed. There had ac-
cordingly been a violation of Article 6 (1).
Right to a reasoned judg-
ment
Article 6 requires that the domestic courts give
reasons for its judgment in both civil and criminal
proceedings. Courts are not obliged to give detailed
answers to every question,
200
but if a submission is
fundamental to the outcome of the case the
court must then specifically deal with it in its
judgment. In Hiro Balani v. Spain
201
the applicant
had made a submission to the court which required
a specific and express reply. The court failed to give
that reply making it impossible to ascertain whether
they had simply neglected to deal with the issue or
intended to dismiss it and if so what were the rea-
sons for dismissing it. This was found to be a viola-
tion of Article 6 (1).
One issue that has been considered by the
Court is the lack of reasoned verdicts by juries in
criminal cases. The Commission held in a case
against Austria
202
that there was no violation since
the jury were given detailed questions to answer,
counsel could apply to make modifications and this
specificity made up for lack of reasons. In addition
to that, the applicant could and did file grounds of
nullity on the basis that the judge had misdirected
the jury as to the law.
200Van de Hurk v. the Neth-
erlands, 19 April 1994,
para. 61.
201Hiro Balani v. Spain,
9 December 1994.
202Appl. No. 25852/94.
44
11. What special rights
apply to juveniles?
The Court has long recognised that the fair trial
rights enshrined in the Convention attach to chil-
dren as well as adults, and in the case of Nortier v. the
Netherlands,
203
the Commission took the view that
any suggestion that children who are tried for crimi-
nal offences should not benefit from the fair trial
guarantees of Article 6 was unacceptable.
The leading cases of the rights of juveniles are T
and V v. the United Kingdom,
204
which concerned two
boys aged ten, who abducted a two-year-old boy
from a shopping mall, battered him to death and left
him on a railway line to be run over. The case caused
enormous publicity and outrage in the United King-
dom. The boys were charged with murder and, be-
cause of the nature of the charge, were tried in an
adult court. They were sentenced to an indetermi-
nate period of detention in 1993, at the age of
eleven.
Before the Court, the applicants submitted in-
ter alia that they had been denied a fair trial since
they were not able to participate effectively in the
conduct of their case. The Court noted that there
was no clear common standard amongst the State
Parties as to the minimum age of criminal responsi-
bility and that the attribution of criminal responsibil-
ity to the applicants did not in itself give rise to a
breach of Article 6. It went on to state:
The Court does, however, agree with the Commission
that it is essential that a child charged with an offence
is dealt with in a manner which takes full account of his
age, level of maturity and intellectual and emotional
capacities, and that steps are taken to promote his abil-
ity to understand and participate in the proceedings.
It follows that, in respect of a young child charged with
a grave offence attracting high levels of media and pub-
lic interest, it would be necessary to conduct the hear-
ing in such a way as to reduce as far as possible his or
her feelings of intimidation inhibition.
205
The Court further stated:
The Court notes that the applicant's trial took place
over three weeks in public in the Crown Court. Special
measures were taken in view of the applicant's young
age and to promote his understanding of the proceed-
ings: for example, he had the trial procedure explained
to him and was taken to see the courtroom in advance,
and the hearing times were shortened so as not to tire
the defendants excessively. Nonetheless, the formality
and ritual of the Crown Court must at times have
seemed incomprehensible and intimidating for a child
of eleven, and there is evidence that certain of the modi-
fications to the courtroom, in particular the raised dock
which was designed to enable the defendants to see
what was going on, had the effect of increasing the ap-
plicant's sense of discomfort during the trial, since he
felt exposed to the scrutiny of the press and public.
206
203Nortier v. the Nether-
lands, Commission Re-
port 9 July 1992,
Appl. No. 13924/88,
para. 60.
204T v. the United Kingdom
and V v. the United King-
dom, both 16 December
1999.
205V v. the United Kingdom,
16 December 1999,
paras 86-87.
206V v. the United Kingdom,
16 December 1999,
para. 88.
45
In addition to this, there was psychiatric evi-
dence that in view of the applicant's immaturity, it
was very doubtful that he understood the situation
and was able to give informed instruction to his law-
yers. The Court held:
Here, although the applicant's legal representatives
were seated, as the Government put it, "within whisper-
ing distance", it is highly unlikely that the applicant
would have felt sufficiently uninhibited, in the tense
courtroom and under public scrutiny, to have consulted
with them during the trial or, indeed, that, given his
immaturity and his disturbed emotional state, he
would have been capable outside the courtroom of coop-
erating with his lawyers and giving them information
for the purposes of his defence.
207
The Court therefore concluded that the appli-
cant was unable to participate in the criminal pro-
ceedings against him and was denied a fair hearing
in accordance with Article 6 (1).
The Court suggested in the cases of Singh and
Hussain v. the United Kingdom
208
that a life sentence
with no possibility of early release which was im-
posed on a juvenile, might raise issues under Arti-
cle 3 (freedom from torture and inhuman and
degrading treatment or punishment).
207V v. the United Kingdom,
16 December 1999,
para. 90.
208Singh and Hussain v. the
United Kingdom, 21 Feb-
ruary 1996.
46
12. What is the situation
regarding admissibility of
evidence?
The European Court has frequently held that it
is not its place to substitute its own view as to the
admissibility of evidence for that of national courts,
although it has examined the way in which the evi-
dence was treated as an important matter in decid-
ing whether or not a trial was fair.
209
The rules of
evidence are thus principally the matter for the do-
mestic courts in each Contracting State.
However the Convention has established some
important guidelines. Much of what follows is also
covered in Chapter 17 on witnesses.
The admission of unlawfully obtained evi-
dence does not in itself violate Article 6, but the
Court held in Schenk v. Switzerland
210
that it can give
rise to unfairness on the facts of a particular case.
In this case, which concerned the use of a recording,
illegal in so far as it was not ordered by the investi-
gating judge, the Court held that there was no viola-
tion of Article 6 (1) as the defence was able to
challenge the use of the recording and there was
other evidence supporting the conviction of the ac-
cused. In Khan v. the United Kingdom
211
the applicant
had arrived in the United Kingdom on the same
plane as his cousin, who was found to be in posses-
sion of heroin. No heroin was found on the appli-
cant. Five months later the applicant visited a friend
who was under investigation for dealing in heroin.
Without the friend's knowledge a listening device
had been installed in his home. The police obtained
a tape recording of a conversation between the ap-
plicant and his friend, where the former admitted he
had been involved in the drug smuggling. He was ar-
rested and charged, and finally convicted of drug of-
fences.
Before the European Court he alleged viola-
tions of Articles 8, the right to respect for private
life, and Article 6. The Court found a violation of Ar-
ticle 8 because no statutory system existed to au-
thorise the use of the covert listening device.
Although the surveillance had complied with inter-
nal Ministry Guidelines, the Court found that these
were not legally binding nor were they directly pub-
licly accessible. They thus lacked the "quality of law"
which Article 8 requires for interferences to be justi-
fiable. In relation to the Article 6 claim, the Court
noted that the applicant had had ample opportunity
to challenge both the authenticity and the use of
the recording. The applicant did not challenge the
authenticity, but did challenge the use. The fact that
he was unsuccessful, the Court stressed, did not
make a difference in the Court's assessment. The
Court therefore found that the use of the material
which had been obtained in violation of Article 8,
did not conflict with the requirements of fairness in-
209Van Mechelen and others
v. the Netherlands,
18 March 1997, para. 50.
210Schenk v. Switzerland,
12 July 1988.
211Khan v. the United King-
dom, 12 May 2000.
47
corporated in Article 6.
What the Court has not yet decided is whether
evidence obtained in violation of domestic law and
which constitutes the only or main evidence by
which a person is found guilty is a violation of Arti-
cle 6 of the Convention.
The use of "agents provocateurs" is a differ-
ent matter. The case of Teixeiro de Castro v. Portugal
212
concerned two undercover police officers who ap-
proached an individual suspected of petty drug-traf-
ficking in order to obtain heroin. Through another
individual, contact was made with the applicant who
agreed to produce the heroin. He obtained this
through yet another person. When handing over the
drugs to the police officers he was arrested.
The applicant complained that he had not had
a fair trial in that he had been incited by plain-
clothes police officers to commit an offence of
which he was later convicted.
The Court pointed out that its task was not to
give a ruling as to whether statements of witnesses
were properly admitted as evidence, but rather to
ascertain whether the proceedings as a whole, in-
cluding the way in which evidence was taken, were
fair. It noted that the use of undercover agents must
be restricted and safeguards put in place even in
cases concerning the fight against drug-trafficking.
The general requirements of fairness embodied in
Article 6 apply to proceedings concerning all types
of criminal offence, from the most straightforward
to the most complex. The public interest in combat-
ing crime cannot justify the use of evidence ob-
tained as a result of police incitement.
The Court considered that in this case the two
police officers did not confine themselves to investi-
gating the applicants' criminal capacity in an essen-
tially passive manner, but exercised an influence
such as to incite the commission of the offence. It
also noted that in their decisions the domestic
courts said that the applicant had been convicted
mainly on the basis of the statements of the two po-
lice officers.
The Court therefore concluded that the offic-
ers' action went beyond those of undercover agents
because they instigated the offence and there was
nothing to suggest that without their intervention it
would have been committed. There had accordingly
been a violation of Article 6 (1).
The admission of hearsay evidence is not in
principle contrary to the fair trial guarantees,
213
but
if there is no opportunity to cross-examine this may
render the trial unfair if the conviction is based
wholly or mainly on such evidence. In the case of
Unterpetinger v. Austria,
214
the applicant was charged
with causing actual bodily harm to his wife and his
step-daughter at two different incidents. The appli-
cant pleaded not guilty. The police had prior to the
hearing taken statements by the wife and the step-
daughter. However, at the hearing, they declared
that they wanted to avail themselves of the right to
212Teixeira de Castro
v. Portugal, 9 June 1998.
213Blastland v. the United
Kingdom, 52 DR 273.
214Unterpetinger v. Austria,
24 November 1986.
48
refuse to give evidence as close family members.
The prosecution was then granted the request
that the statements the women had made prior to
the trial should be read out in court.
The European Court stated that in itself, the
reading out of statements in this way could not be
regarded as a violation of the Convention. However,
the use of them must comply with the rights of the
defence. It went on to state that it was clear that the
applicant's conviction was based mainly on the
statements by the wife and step-daughter. The do-
mestic court had not treated these simply as items
of information but as proof of the truth of the accu-
sations made by the women at the time. Bearing in
mind that the applicant had not had an opportunity
at any stage in the proceedings to question the per-
sons whose statements were read out at the hear-
ing, he had not had a fair hearing within the meaning
of Article 6 (1) taken together with the principles in
6 (3) d.
The use of evidence obtained from police in-
formers, undercover agents and victims of
crime may sometimes require measures to protect
them from reprisals or identification. In Doorson v. the
Netherlands the Court stated: "principles of fair trial also
require that in appropriate cases the interests of the defence
are balanced against those of witnesses or victims called upon
to testify."
215
In this case, in order to take action
against drug trafficking in Amsterdam, the police
compiled sets of photographs of persons suspected
of being drug dealers. The police received informa-
tion that the applicant was engaged in drug traffick-
ing, and his photograph was shown to a number of
drug addicts who stated that they recognised him
and that he sold drugs. A number of these remained
anonymous. The applicant was arrested and later
convicted of having committed drug offences.
The applicant complained that the taking of,
hearing of and reliance on evidence from certain
witnesses during the criminal proceedings against
him infringed the rights of the defence in violation
of Article 6. He stressed that during the first in-
stance proceedings two anonymous witnesses had
been questioned by the investigating judge in the
absence of his lawyer.
The Court pointed out that the use of anony-
mous witnesses at trial will raise issues under the
Convention, and that there have to be counterbal-
ancing measures to ensure the rights of the de-
fence. The Court noted that the witnesses were
questioned at the appeal stage in the presence of
the defence lawyer by an investigating judge who
was aware of their identity. The lawyer had the op-
portunity to ask the witnesses whatever questions
he considered to be in the interest of the defence
except in so far as they might lead to the disclosure
of their identity, and these questions were all an-
swered. The Court also noted that the national
court did not base its findings of guilt solely or to a
decisive extent on the evidence of the anonymous
215Doorson v. the Nether-
lands, 20 February 1996,
para. 70.
49
witnesses, and did therefore not find a violation of
Article 6.
In Kostovski v. the Netherlands
216
the applicant had
been identified to the police as having taken part in
the robbery of a bank by two persons who wished to
remain anonymous. Statements made by these wit-
nesses were read out in court during the trial where
the applicant was convicted of armed robbery.
Before the European Court the applicant com-
plained that he had not had a fair trial because of
the use as evidence of the reports of statements by
two anonymous witnesses.
The Court noted that in principle all the evi-
dence must be produced in the presence of the ac-
cused. However, to use as evidence statements
obtained at the pre-trial stage is not in itself incon-
sistent with Article 6, as long as the rights of the de-
fence have been respected. These rights require as a
rule the opportunity for the accused to challenge
and question a witness at some stage of the pro-
ceedings. In the present case, this opportunity was
not afforded. The Court therefore found a violation
of Article 6.
Different considerations will apply where the
witnesses are police officers. Because they
owe a general duty of obedience to the State's executive
authorities and usually have links to the prosecution...
their use as anonymous witnesses should be resorted to
only in exceptional circumstances. In addition, it is in
the nature of things that their duties... may involve
giving evidence in open court.
217
The Commission has held that the evidence of
an accomplice who has been offered immunity
from prosecution may be admitted without violating
Article 6, provided the defence and the jury are
made fully aware of the circumstances.
218
Evidence obtained by maltreatment cannot
be used as evidence in criminal proceedings. In
the case of G v. the United Kingdom
219
the Commission
noted that early access to a lawyer is an important
safeguard as to the reliability of confession evi-
dence. It stated that when a charge is based solely
on the confession of the accused, without the ben-
efit of legal advice, a procedure must exist whereby
the admissibility of such evidence can be examined.
The Court dealt with confessions obtained
during incommunicado detention in the case of
Barberá, Messegué and Jabardo v. Spain.
220
It expressed
reservations about the use of such confessions,
particularly where the authorities could not clearly
demonstrate that the applicants had waived their
right to legal assistance.
216Kostovski v. the Nether-
lands, 20 November
1989.
217Van Mechelen and others
v. the Netherlands,
18 March 1997, para. 56.
218X v. the United Kingdom,
7 DR 115.
219G v. the United Kingdom,
35 DR 75.
220Barberá, Messegué and
Jabardo v. Spain, 6 De-
cember 1988. On this
case see further below
Chapter 13.
50
13. What actions might
contravene the presump-
tion of innocence?
Article 6 (2) states that everyone charged with a
criminal offence shall be presumed innocent until
proved guilty according to law. However, it also ap-
plies to the kinds of civil cases which the Convention
regards as "criminal", such as professional discipli-
nary proceedings.
221
The Court stated in the case of Barberá, Messegué
and Jabardo v. Spain that the principle of the presump-
tion of innocence
... requires, inter alia, that when carrying out their
duties, the members of a court should not start with the
preconceived idea that the accused has committed the
offence charged; the burden of proof is on the prosecu-
tion, and any doubt should benefit the accused.
222
However, Article 6 (2) does not prohibit rules
which transfer the burden of proof to the accused to
establish his/her defence, if the overall burden of es-
tablishing guilt remains with the prosecution. In ad-
dition, Article 6 (2) does not necessarily prohibit
presumptions of law or fact, but any rule which shifts
the burden of proof or which applies a presumption
operating against the accused must be confined
within "reasonable limits which take into account the impor-
tance of what is at stake and maintain the rights of the de-
fence".
223
In an old case from the United Kingdom,
the Commission held acceptable a presumption
that a man proved to be living with or controlling a
prostitute was living off immoral earnings.
224
In the
case of Salabiaku v. France
225
the applicant took deliv-
ery of a loaded trunk which proved to contain drugs,
and was subject to a presumption of responsibility.
The Court held however, that since the domestic
courts maintained a freedom of assessment and
gave attention to the facts of the case, quashing
one conviction, there was no violation.
Article 6 (2) applies to criminal proceedings in
their entirety, and comments made by judges on the
termination of proceedings or when the accused
has been acquitted will violate the presumption of
innocence. In the case of Minelli v. Switzerland
226
the
prosecution of the applicant was stayed because of
the expiry of a statutory limitation period. However,
the domestic court ordered that he should pay part
of the prosecution costs as well as compensation to
the alleged victim as if it had not been for the time
bar, the applicant would probably have been con-
victed. There had therefore been a violation of Arti-
cle 6 (2) since the ruling of the domestic court was
incompatible with the presumption of innocence.
Not only the courts but also other State organs
are bound by the principle of presumption of inno-
cence. In the case of Allenet de Ribemont v. France
227
the applicant, while in police custody, was pointed
out at a press conference by a senior police officer
221Albert and Le Compte
v. Belgium, 10 February
1983.
222Barberá, Messegué and
Jabardo v. Spain, 6 De-
cember 1988, para. 77.
223Salabiaku v. France, 7
October 1988, para. 28.
224X v. the United Kingdom,
42 CD 135.
225Salabiaku v. France,
7 October 1988.
226Minelli v. Switzerland,
21 February 1983.
227Allenet de Ribemont
v. France, 10 February
1995.
51
as the instigator of a murder. The Court held that Ar-
ticle 6 (2) applied to other public authorities apart
from the courts when an applicant was "charged
with a criminal offence". The declaration of guilt was
made by the police officer without any qualification
or reservation and encouraged the public to believe
that the applicant was guilty before the facts had
been assessed by a competent court. This was held
to be a violation of the principle of the presumption
of innocence, and it was not cured by the fact that
the applicant was later released by a judge for lack
of evidence.
The presumption of innocence must equally be
upheld after acquittal as before trial. The Court held
in Sekanina v. Austria
228
that it is no longer admissible
for the domestic courts to rely on suspicions re-
garding an applicant's guilt once an acquittal has
become final.
228Sekanina v. Austria, 25
June 1993, para. 30.
52
14. What is the meaning of
the right to prompt intelli-
gible notification of
charges as covered in Arti-
cle 6 (3) a?
The list of minimum guarantees set out in Arti-
cle 6 (3) a-e is not exhaustive. It represents specific
aspects of the right to a fair trial. The Court has held
that the relationship between Article 6 (1) and Arti-
cle 6 (3) "is that of the general to the particular". A crimi-
nal trial could therefore fail to fulfil the requirements
of a fair trial, even if the minimum guarantees in Arti-
cle 6 (3) are upheld.
229
Article 6 (3) a states that everyone charged with
a criminal offence has the right to be informed
promptly, in a language which he/she understands
and in detail, of the nature and cause of the accusa-
tion against him/her. As with Article 6 (2) it also ap-
plies to the kinds of civil cases which the Convention
regards as "criminal", such as professional discipli-
nary proceedings.
230
This provision is aimed at the information that
is required to be given to the accused at the
time of the charge
231
or the commencement of
the proceedings. As regards the relationship be-
tween this provision and Article 5 (2),
232
the latter
generally requires less detail and is not as rigorous.
In the case of De Salvador Torres v. Spain,
233
the
applicant complained that the domestic court had
relied on an aggravating circumstance, not men-
tioned in the charge, to increase his sentence. How-
ever, the Court did not find a violation since the
circumstance was an intrinsic element to the accu-
sation against the applicant and known by him from
the start of the proceedings. In contrast, the Com-
mission found a violation in Chichlian and Ekindjian
v. France,
234
where the charge had been reclassified
in a substantial sense. The applicants had been ac-
quitted of a currency offence charged under one
section of the relevant domestic law, but then con-
victed on appeal of the offence under another sec-
tion. The Commission held that the material facts
had always been known to the applicants but there
was no evidence that the applicants had been in-
formed by the relevant authority of the proposal to
reclassify the offence before the appeal hearing.
The information about the charge must be in
a language that the accused understands. In
the case of Brozicek v. Italy
235
the accused was Ger-
man, and did clearly express his language difficulties
to the domestic court. The European Court held
that the Italian authorities should have had the noti-
fication translated unless they were in a position to
establish that he knew adequate Italian, which was
not the case. Similarly, the Court held in Kamasinski
229See e.g. Artico v. Italy, 13
May 1980.
230See above chapter 9.
231For what constitutes a
charge, see above chap-
ter 5.
232Article 5 (2) reads Every-
one who is arrested shall
be informed promptly, in
a language which he
understands, of the rea-
sons for his arrest and of
any charge against him.
233De Salvador Torres
v. Spain, 24 October
1996.
234Chichlian and Ekindjian
v. France, Report of the
Commission, 16 March
1989, Appl. No. 10959/
84.
235Brozicek v. Italy, 19 De-
cember 1989.
53
v. Austria,
236
that a defendant not conversant with
the court's language may be put at a disadvantage if
he is not also provided with a written translation of
the indictment in a language he understands.
It is essential that the offence of which a
person is convicted is the one with which he
was charged. In Pélissier and Sassi v. France
237
the ac-
cused were charged only with criminal bankruptcy
but convicted of conspiracy to commit criminal
bankruptcy. The court held that since the element of
the two offences differed, this was a violation of the
Convention.
236Kamasinski v. Austria,
19 December 1989.
237Pélissier and Sassi
v. France, 25 March
1999.
54
15. What is adequate time
and facilities according to
Article 6 (3) b?
Article 6 (3) b states that everyone charged with
a criminal offence has the right to have adequate
time and facilities for the preparation of his/her de-
fence. This also applies in some civil cases.
238
The judge's key role in relation to this pro-
vision is to achieve the proper balance between
this requirement and the obligation to ensure
that trials are concluded within a reasonable
time.
239
The provision is also closely related to Arti-
cle 6 (3) c, the right to legal assistance and legal aid.
Complaints on this point in relation to convic-
tions have been declared inadmissible when they
have been made by a person who has subsequently
been acquitted on appeal in criminal proceedings or
by an accused who declares that he/she will not take
any further part in the proceedings.
240
The judge's
role is nevertheless to ensure that this safeguard is
respected in the proceedings before him/her and
not to rely on the possibility of the defect being
made good on appeal.
The adequacy of the time will depend on all the
circumstances of the case, including the complexity
and the stage the proceedings have reached.
241
A fundamental element is that the defence law-
yer must be appointed in sufficient time to allow
proper preparation to take place.
242
This principle implies a presumption that the
accused's lawyer has unrestricted and confidential
access to any client held in pre-trial detention in or-
der to discuss all elements of the case. A system
which routinely requires the prior authorisation of
the judge or procurator for legal visits will violate
this section. Judges should make it clear to all par-
ties when authorising or prolonging pre-trial deten-
tion that their permission is NOT required for legal
visits to take place. If in addition the prosecutor
wishes to authorise legal visits not only will this pro-
vision be violated but the whole fairness of the trial
may be questionable. It follows that the prison au-
thorities cannot require any authority from the
judge in order to facilitate legal visits. Furthermore
they must ensure that adequate facilities are pro-
vided to enable legal visits to take place in confi-
dence and out of hearing of the prison authorities.
Where the accused, or his lawyers, allege that
adequate facilities have not been provided the
judge has the responsibility to decide whether or
not the trial can go ahead without violating Article
6 (3) b. In doing so the judge will bear in mind that
the right of the accused to communicate freely
with his lawyer in the preparation of his defence is
regarded as absolutely central to the concept of
a fair trial.
243
Certain restrictions may however be justified in
238See above chapter 14.
239See above chapter 80.
240X v. the United Kingdom,
19 DR 223, and X v. the
United Kingdom,
21 DR 126.
241See e.g. Albert and Le
Compte v. Belgium,
10 February 1983, and X
v. Belgium, 9 DR 169.
242X and Y v. Austria,
15 DR 160.
243Campbell and Fell v. the
United Kingdom, 28 June
1984.
55
exceptional circumstances. The admissibility deci-
sion in Kröcher and Möller v. Switzerland
244
concerned
the detention of those classified as exceptionally
dangerous prisoners and charged with particularly
serious terrorist offences. The judge had ruled that
they were unable to receive legal visits for three
weeks, and only able to correspond with their law-
yers under judicial supervision during that period.
Once the legal visits had been authorised they were
not monitored. The Commission did not consider
that this disclosed a violation of Article 6 (3) b. In
other cases the Commission found no violation
where the applicant was placed in solitary confine-
ment and prevented from communicating with his
lawyer for limited periods, since there was adequate
opportunity to communicate with the lawyer at
other times.
245
In Kurup v. Denmark
246
there was no
violation when defence counsel was placed under
an obligation not to disclose the identity of certain
witnesses to his client. This was not a restriction
that affected the applicant's right to prepare his de-
fence to such an extent that it could amount to a
violation of Article 6 (3) b or d.
Any such restrictions must be however be no
more than strictly necessary and must be pro-
portionate to identified risks.
The right to communicate with a lawyer also in-
cludes the right to correspond via letters. Most of
these cases have been examined under Article 8 of
the Convention (the right to respect for corre-
spondence) as well as under Article 6 (3) b. In the
case of Domenichini v. Italy
247
the Court held that the
monitoring of the applicant's letters to his lawyer by
the prison authorities constituted a violation of both
Article 8 and Article 6 (3) b, especially because of a
delay in sending one of his letters to the lawyer.
The Convention demands that any interfer-
ences with the rights of accused or detained person
to communicate with their lawyers must be pre-
scribed by a law which is "precise and ascertainable"
and which clearly sets out the circumstances in
which such interferences are permitted.
As regards the applicant's right to access to
evidence, the Commission held in the case of Jespers
v. Belgium,
248
that
... the Commission takes the view that the "facilities"
which everyone charged with a criminal offence should
enjoy include the opportunity to acquaint himself, for
the purposes of preparing his defence, with the results of
investigations carried out throughout the proceedings.
Furthermore, the Commission has already recognised
that although a right of access to the prosecution file is
not expressly guaranteed by the Convention, such a
right can be inferred from Article 6, paragraph 3.b... It
matters little, moreover, by whom and when the investi-
gations are ordered or under whose authority they are
carried out.
The Commission went on to state
In short, Article 6, paragraph 3.b, recognises the right
of the accused to have at his disposal, for the purposes of
244Kröcher and Möller
v. Switzerland, 26 DR 24.
245See e.g. Bonzi v. Switzer-
land, 12 DR 185.
246Kurup v. Denmark,
42 DR 287.
247Domenichini v. Italy,
15 November 1996.
248Jespers v. Belgium,
27 DR 61.
56
exonerating himself or of obtaining a reduction in his
sentence, all relevant elements that have been or could
be collected by the competent authorities.
The Commission added that this right was re-
stricted to those facilities which assist or may assist
in defence.
The principle has in practice had a rather nar-
row interpretation. In the above-mentioned case of
Jespers v. Belgium, the applicant alleged lack of access
to a special folder of the public prosecutor. The
Commission, although stressing that refusal of ac-
cess would breach Article 6 (3) b if it contained any-
thing enabling him to exonerate himself or reduce
his sentence, found that there was no evidence from
the applicant that it contained anything relevant and
the Commission was not prepared to presume that
the Government had not complied with its obliga-
tions.
Further, the Court has held that a state may re-
strict access to the file to the defendant's lawyer.
249
Limitations on the disclosure of evidence to the ap-
plicant have been found acceptable where there is a
sound reason in the interests of the administration
of justice, even though arguably the evidence was of
significance to the defence.
250
249Kremzow v. Austria,
21 September 1992.
250Kurup v. Denmark,
42 DR 287. See also
above chapter 12.
57
16. What is incorporated
in the right to representa-
tion and legal aid accord-
ing to Article 6 (3) c?
Article 6 (3) c provides for the accused the right
to defend himself/herself in person or through legal
assistance of his/her own choosing or, if he/she has
not sufficient means to pay for legal assistance, to
be given it free when the interests of justice so re-
quire.
The Court has held that the right to represent
oneself in person is not an absolute right. In the
case of Croissant v. Germany
251
it held that the require-
ment that a defendant be assisted by a lawyer at the
domestic court proceedings was not incompatible
with Article 6 (3) c.
Where the accused has the right to free legal
assistance, he/she is entitled to legal assistance
which is practical and effective and not merely
theoretical and illusory. The Court held in Artico
v. Italy that even if the authorities can not be held
responsible for every shortcoming of a legal aid law-
yer and the conduct of the defence, emphasising
that:
... Article 6 (3) c speaks of "assistance" and not of
"nomination". Again, mere nomination does not en-
sure effective assistance since the lawyer appointed for
legal aid purposes may die, fall seriously ill, be pre-
vented for a protracted period from acting or shirk his
duties. If they are notified of the situation, the authori-
ties must either replace him or cause him to fulfil his
obligations.
252
The Court further stated in the case of
Kamasinski v. Austria that
... the competent national authorities are required un-
der Article 6 (3) c to intervene only if a failure by le-
gal aid counsel to provide effective representation is
manifest or sufficiently brought to their attention in
some other way.
253
Where it is clear that the lawyer representing
the accused before the domestic court has not had
the time and facilities to properly prepare the case,
the presiding judge is under a duty to take measures
of a positive nature to ensure that his/her obliga-
tions to the defendant are properly fulfilled. In such
circumstances an adjournment would usually be
called for.
254
The Commission has held that the right to
choose a lawyer arises only where the accused has
sufficient means to pay the lawyer. A legally aided
accused thus has no right to choose his representa-
tive, or to be consulted in the matter.
255
Even so the
right to choose is not absolute: the State is entitled
to regulate the appearance of lawyers in the courts
and in certain circumstances to exclude the qualifi-
cations of particular individuals.
256
251Croissant v. Germany,
25 September 1992.
252Artico v. Italy, 30 April
1980, para. 33.
253Kamasinski v. Austria,
19 December 1989,
para. 65.
254Goddi v. Italy, 9 April
1984, para. 31.
255M v. the United Kingdom,
36 DR 155.
256Ensslin et al v. the Federal
Republic of Germany,
14 DR 64, and X v. the
United Kingdom, 15 DR
242.
58
The right to legal aid for an accused depends
on two circumstances. Firstly, that the accused
lacks sufficient means to pay for legal assistance.
Not many issues regarding this condition have
arisen before the Convention organs, but it seems
that the level of proof required for a defendant that
he/she lacks resources should not be set too high.
The second condition is that the interests of
justice require legal aid to be granted. A number of
factors are relevant here. The Court will have regard
to the ability of the defendant to present the case
adequately without assistance. In the case of Hoang
v. France,
257
the Court stated that where there are
complex issues involved, and the defendant does
not have the legal training necessary to present and
develop appropriate arguments and only an experi-
enced lawyer would have the ability to prepare the
case, the interests of justice require that a lawyer be
officially assigned to the case.
The Court will also have regard to the complex-
ity of the case. Finally, the seriousness of any possi-
ble sanction is also relevant to the question whether
legal aid should be granted. The Court held in the
case of Benham v. the United Kingdom,
258
that "where the
deprivation of liberty is at stake, the interests of justice in
principle call for legal representation". The Court however
also emphasised that the proceedings were not
straightforward.
In Perks and others v. the United Kingdom,
259
the
Court followed on from its decision in Benham v. the
United Kingdom. This case concerned a number of ap-
plicants who were imprisoned for failure to pay
community charge (poll tax). The Court held that
having regard to the severity of the penalty risked by
the applicants and the complexity of the applicable
law, the interests of justice demanded that in order
to receive a fair hearing, the applicants ought to
have benefited from free legal representation.
Factors relevant to the question of legal aid
may alter, and any refusal of legal aid must therefore
be reviewed. In Granger v. the United Kingdom
260
the
degree of complexity involved in one of the issues
for determination only really became clear during
the appeal hearing. The Court held that it would
have been in the interests of justice for legal aid to
have been available for that point on, and that in
the absence of any review of the original decision
there had been a breach of Article 6 (3) c.
The Court has emphasised that it is not neces-
sary to prove that the absence of legal assistance
had caused actual prejudice in order to establish a
violation of Article 6 (3) c. If such proof were neces-
sary, this would in large measure deprive the provi-
sion of its substance.
261
The right to legal aid in civil cases is not ex-
pressly set out in the Convention but the Court has
held that it must be available if the interests of jus-
tice so require.
262
In some jurisdictions of the Council of Europe,
e.g. Cyprus, there is no legal aid for civil cases but ex
257Hoang v. France, 29 Au-
gust 1992, paras. 40-41.
258Benham v. the United
Kingdom, 10 June 1996.
259Perks and others v. the
United Kingdom, 12 Oc-
tober 1999.
260Granger v. the United
Kingdom, 28 March
1990.
261Artico v. Italy, 30 April
1980, para. 35.
262Airey v. Ireland, 9 Octo-
ber 1979.
59
gratia payment can be made by the state in suitable
cases.
263
Whether or not the lack of legal aid leads
to a violation of the Convention will depend on the
facts of the case.
It is for the judge to assess whether the inter-
ests of justice require that an indigent litigant
should be provided with legal assistance if he/she
does not have the means to pay for it.
263Andronicou and
Constantinou v. Cyprus,
9 October 1997.
60
17. How shall the right to
witness attendance and
examination as covered by
Article 6 (3) d be inter-
preted?
Article 6 (3) d provides that the accused has the
right to examine or have examined witnesses against
him/her, and to obtain the attendance and examina-
tion of witnesses on his/her behalf under the same
conditions as witnesses against him/her. Some of
what follows here is also covered in chapter 12 on
evidence.
The general principle is therefore that accused
persons must be allowed to call and examine any
witness whose testimony they consider relevant to
their case, and must be able to examine any witness
who is called, or whose evidence is relied on, by the
prosecutor.
This provision does not give an accused an ab-
solute right to call witnesses or a right to force the
domestic courts to hear a particular witness. Do-
mestic law can lay down conditions for the admis-
sion of witnesses and the competent authorities can
refuse to allow a witness to be called if it appears
that the evidence will not be relevant. The applicant
must therefore establish that the failure to hear a
particular witness prejudiced his/her case.
264
How-
ever, the procedure for summonsing and hearing of
witnesses must be the same for the prosecution as
the defence and equality of arms is required.
In principle, all evidence relied on by the pros-
ecution should be produced in the presence of the
accused at a public hearing with a view to
adversarial argument.
265
Problems will therefore
arise if the prosecution introduces written state-
ments by a person who does not appear as a wit-
ness, for example because he/she fears reprisals
from the accused or his/her associates.
Only exceptional circumstances will permit
the prosecution to rely on evidence from a witness
that the accused has been unable to cross examine.
The determination by the judge of a criminal charge
in reliance on the prosecutor's file, but without the
prosecutor being present to answer any chal-
lenge by the accused, is likely to give rise to the
risk of violations of this provision. The judge of
course, cannot defend the prosecutor's case in his
absence without compromising his impartiality.
Many Convention States have rules which ex-
cuse some witnesses, e.g. family members, from giv-
ing evidence. The Court stated in the case of
Unterpertinger v. Austria
266
that such provisions are
manifestly not incompatible with Article 6 (1) and 6
(3) d. However, in that case, the Court noted that the
domestic court did not treat the statements by the
264X v. Switzerland, 28 DR
127.
265Barberá, Messegué and
Jabardo v. Spain, 6 De-
cember 1988, para. 78.
266Unterpertinger v. Austria,
24 November 1986.
61
applicant's former wife and step-daughter as items
of information, but as proof of the truth of the accu-
sations made by the women at the time. The appli-
cant's conviction was based mainly on this
evidence, and therefore the rights of the defence
had not been sufficiently safeguarded.
267
Problems will also arise if a witness falls seri-
ously ill or dies. The Court has held that this can jus-
tify reliance on hearsay evidence so long as
counterbalancing factors preserve the rights of the
defence.
268
In regards to poor health issues, the
Court will strongly consider the existence of alterna-
tives which avoid recourse to hearsay evidence. In
the case of Bricmont v. Belgium, the Prince of Belgium
had brought charges against the applicants but not
given evidence on medical grounds. The Court held
that
in the circumstances of the case, the exercise of the
rights of the defence ­ an essential part of the right to a
fair trial ­ required in principle that the applicants
should have the opportunity to challenge any aspect of
the complainant's account during a confrontation or
an examination, either in public or, if necessary, at his
home.
269
A genuine fear of reprisals may in some circum-
stances justify reliance on hearsay evidence. How-
ever, there have to be counter-balancing procedures
which preserve the rights of the defence.
In the case of Sadi v. France, the applicant was
convicted of drug trafficking on the basis of hearsay
evidence from three anonymous identification wit-
nesses. The Court held:
The Court is fully aware of the undeniable difficulties of
the fight against drug-trafficking ­ in particular with
regard to obtaining and producing evidence ­ and of the
ravages caused to society by the drug problem, but such
considerations cannot justify restricting to this extent
the rights of the defence of everyone charged with a
criminal offence.
270
The Court found that Article 6 (3) d had been
violated since the identification evidence consti-
tuted the sole basis for the applicant's conviction.
As a general rule, the fear of reprisals relied
upon to justify recourse to hearsay evidence does
not have to be linked to any specific threat from the
defendant. The Court held in Doorson v. the
Netherlands
271
that although the two witnesses had
never been threatened by the applicant, drug deal-
ers frequently resorted to threats or actual violence
against persons who gave evidence against them.
A further problem with anonymous witnesses is
that the defence is not able to challenge the cred-
ibility of the witness. The Court stated in Kostovski
v. the Netherlands:
If the defence is unaware of the identity of the person it
seeks to question, it may be deprived of the very particu-
lars enabling it to demonstrate that he or she is preju-
diced, hostile or unreliable. Testimony or other
declarations inculpating an accused may well be de-
signedly untruthful or simply erroneous and the de-
267See also Chapter 12.
268Ferrantelli and Santangelo
v. Italy, 7 August 1996.
269Bricmont v. Belgium,
7 July 1989, para. 81.
270Sadi v. France, 20 Sep-
tember 1993, para. 44.
271Doorson v. the Nether-
lands, 20 February 1996,
para. 71.
62
fence will scarcely be able to bring this to light if it lacks
the information permitting it to test the author's reli-
ability or cast doubt on his credibility. The dangers in-
herent in such a situation are obvious.
272
The counterbalancing procedures needed to
ensure a fair trial will vary from case to case. Impor-
tant factors include whether the accused or his/her
lawyer was present when the witness was ques-
tioned, whether he/she could ask questions and
whether the trial judge was aware of the identity of
the witness. As the Court stated in Van Mechelen and
others v. the Netherlands
Having regard to the place that the right to a fair ad-
ministration of justice holds in a democratic society,
any measures restricting the right of the defence should
be strictly necessary. If a less restrictive measure can
suffice then that measure should be applied.
273
Finally, it is important to note that, even where
there are sufficient counterbalancing procedures, a
conviction should not be based either solely or to a
decisive extent on evidence from anonymous wit-
nesses.
274
272Kostovski v. the Nether-
lands, 20 November
1989, para. 42.
273Van Mechelen and others
v. the Netherlands,
18 March 1997, para. 58.
274Doorson v. the Nether-
lands, 20 February 1996,
para. 76.
63
18. What does the right to
an interpreter as covered
by Article 6 (3) e incorpo-
rate?
Article 6 (3) e provides that the accused is enti-
tled to free assistance of an interpreter if he/she can
not understand or speak the language used in court.
The Court held in Luedicke, Belkacem and Koç v. the
Federal Republic of Germany that the provision abso-
lutely prohibits a defendant being ordered to pay
the costs of an interpreter since it provides "neither a
conditional remission, nor a temporary exemption, nor a sus-
pension, but a once and for all exemption or exoneration".
The Court further stated that this principle covered
"those documents or statements in the proceedings instituted
against him which is necessary for him to understand in or-
der to have the benefit of a fair trial".
275
In Brozicek v. Italy, a
German national was charged in Italy. The Court
held, in relation to Article 6 (3) a but which is still rel-
evant here, that documents constituting an accusa-
tion should be provided in German "unless they were in
a position to establish that the applicant in fact had sufficient
knowledge of Italian to understand... the purport of the letter
notifying him of the charges brought against him".
276
However, in Kamasinski v. Austria the Court
adopted a more restrictive approach and held that
although Article 6 (3) e applied to documentary ma-
terial disclosed before trial, it did not require written
translations of all such documentation. The Court
noted here, however, that the defence counsel was
competent in the applicant's mother tongue. The
Court held that the assistance "should be such as to en-
able the defendant to have knowledge of the case against him
and to defend himself, notably by being able to put before the
court his version of the events".
277
The competent authorities' obligation is not
limited to the mere appointment of an interpreter
but may also extend to exercising a degree of con-
trol over the adequacy of the interpretation, if they
are put on notice of the need to do so.
The right to an interpreter is understood to ex-
tend to deaf people where the normal method of
communication is for instance by sign language.
In the case of Öztürk v. the Federal Republic of
Germany,
278
which is dealt with above in relation to
what is a criminal charge, the issue of whether the
act in question was or was not a criminal charge
arose because the German authorities wanted to
make the applicant pay for his interpreter.
275Luedicke, Belkacem and
Koç v. the Federal Repub-
lic of Germany, 28 No-
vember 1978, paras. 40
and 48.
276Brozicek v. Italy, 19 De-
cember 1989, para. 41.
277Kamasinski v. Austria,
19 December 1989,
para. 74.
278Öztürk v. the Federal
Republic of Germany, 21
February 1984.
64
19. What are the problems
in relation to supervisory
review?
A common feature of certain States' legal pro-
ceedings is the initiating of a "supervisory review" or
a "protest" of a judgment that has been delivered by
a court and which is not subject to any further right
of appeal. This exists, for example, in the Russian
Federation. It can also be used where no appeal has
been made, regardless of whether the time limit for
appealing has expired or not. Requests for supervi-
sory review can also be lodged by chairmen and the
chairman of the Supreme Court. They have the
same powers and their requests follow the same
procedure as the procurator.
The procurator can exercise this right at the re-
quest of the parties or any other interested person
or ex proprio motu.
This is a right and not a duty, and is exercised
at the discretion of the procurator. The exercise of
the right ­ or the refusal to exercise it ­ is not sub-
ject to judicial review, and can continue to be used
indefinitely to re-open a case.
Judges need to be aware of a number of points
about this in relation to the European Convention
on Human Rights.
The Court has not as yet ruled in any case from
the Russian Federation as to whether the use of this
procedure is compatible with the Convention. How-
ever, a similar procedure in Romania was found to
be a violation. In Brumarescu v. Romania, the Procura-
tor General had the right to apply at any time to the
Supreme Court to have any judicial decision
quashed on a number of grounds. The Court found
that this was a violation of Article 6 (1) and noted
One of the fundamental aspects of the rule of law is the
principle of legal certainty, which requires inter alia
that where the courts have finally determined an issue,
their ruling should not be called into question.
279
Once the final judicial decision has been deliv-
ered and any available judicial appeals have been
made and decided, judges should be very reluctant
to accede to a request by the procurator to re-open
a case or to initiate supervisory review proceedings
themselves, as to do so may be considered a viola-
tion of the Convention according to the principle
set out in the case of Brumarescu v. Romania. The mix-
ing within the Russian Federation judicial system of
the role of the judge and that of the procurator in
the administration of justice presents serious diffi-
culties in compliance with the Convention.
It is still unclear whether the exercise of the
power of supervisory review of a judicial procedure
which would otherwise be final will always amount
to a violation of the Convention, but another re-
lated problem presents itself to the judge in this
context.
279Brumarescu v. Romania,
28 October 1999,
para. 61.
65
Individuals who wish to complain to the Euro-
pean Court of Human Rights about some aspect of
legal proceedings must first exhaust all effective do-
mestic remedies and then make the complaint
within six months.
280
A procedure of supervisory review is seen by
the Strasbourg institutions as akin to the role of an
ombudsman in many jurisdictions and is not re-
garded as an "effective remedy" by the Court.
281
This procedure can be contrasted with the system
of judicial review of administrative action in the
Anglo-Saxon legal order which has been found by
the Court to be an effective remedy.
A request to a procurator or a judge to exercise
the right of supervisory review is not considered by
the European Court to be an effective remedy for
the purposes of Article 35 of the Convention not
only because it may in itself constitute a violation of
Article 6 but also because it is a discretionary power,
and because for a remedy to be effective the person
concerned must be able to institute the relevant
proceedings himself.
282
If the procurator seeks a supervisory review in a
case where one of the parties to judicial proceed-
ings wishes to make a complaint to the European
Court about the proceedings ­ or might wish to do
so if the supervisory review is unsuccessful ­ the
judge should be mindful that seizing himself of the
case at the procurator's request may have the effect
of putting the aggrieved party outside the six
months' time-limit for bringing the case to the Euro-
pean Court. Since both the lawyers and the procura-
tor may be unaware of this, the judge should draw
the attention of the parties to the date of the final
"effective" decision and to the need to lodge any
complaint with the European Court before six
months have elapsed from that date.
280See Article 35.
281Tumilovich v. the Russian
Federation, Admissibility
decision by the Court,
22 June 1999.
282H v. Belgium, 37 DR 5.
Directorate General of Human Rights
Council of Europe
F-67075 Strasbourg Cedex
http://www.humanrights.coe.int
These human rights handbooks are intended as a very practical
guide to how particular articles of the European Convention on
Human Rights have been applied and interpreted by the Euro-
pean Court of Human Rights in Strasbourg. They were written
with legal practitioners, and particularly judges, in mind, but are
accessible also to other interested readers.