Article 6 Fair Determination of Rights

Article 6 – Fair determination of Rights

Article 6 of the European Convention on Human Rights provides a right to a fair trial in civil and in criminal matters and provides:-

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
4. (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
5. (b) to have adequate time and the facilities for the preparation of his defence;
6. (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 interests of justice so require;
7. (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;
8. (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

The European Court of Human Rights has stated that the rights guaranteed by Article 6 are applicable to all decisions where rights and obligations are at stake. In the case of Stran Greek Refineries v Greece [1995] ECHR 319 the Court stated:-

“Article 6(1) applies irrespective of the status of the parties, of the nature of the legislation which governs the matter in which the dispute is to be determined and of the character of the authority which has jurisdiction in the matter; it is enough that the outcome of the proceedings should be decisive for private rights and obligations.”

Thus the phrase “civil rights and obligations” has an autonomous convention meaning.

The European Court of Human Rights has held that Art. 6 is invoked when issues such as public-law welfare entitlements are involved; see Feldbrugge v The Netherlands; Deumeland v Germany (May 9th 1986.) Because Art. 6 is engaged with respect to such entitlements it is triggered in such a forum as social welfare appeals.

However, the principles are more strictly applied in the context of criminal proceedings, and States Parties have more latitude in respect of civil matters. Particular latitude is shown in cases involving the expulsion of aliens.

In a criminal law context, these rights must be reason in conjunction with other Convention provisions, including Art. 7 and the Seventh protocol. In Ireland, the rights guaranteed by the ECHR are similar to those guaranteed pursuant to the right to a trail in the due course of law under Art. 38.1.

In Ireland, these rights are still being developed with assistance from Art.6. Thus, in D.S. -v- Judges of the Circuit Court (Supreme Court, 10 June 2008; [2008] IESC 37) the ECHR was used to prohibit a trail on the basis that repeated retrials were unfair. The jury had been unable to reach a decision in two prior trials. The Applicant could not claim double jeopardy as he had never been convicted or acquitted of the offences material to the proposed retrial, so the prohibition was one based on newer, stand-alone principles of what constitutes a fair trial. In this, Art. 6 played an influential role.

“However, … there must come a time in the criminal process where repeated trials of a citizen may come to be seen as oppressive and as an abuse of discretion on the part of the Director of Public Prosecutions. It may become an unfair procedure in itself to re-try. Put another way, a “breaking point” may be reached where no further trial should be permitted if the fairness and due process requirements of Article 38.1 of the Constitution and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms are to be properly observed.

… A factual analysis arising in an application to prevent a third trial would have regard to matters such as the following:-

1. The seriousness of the offence or offences under consideration.
2. The extent, if any, to which the applicant may himself have contributed to any mishap which led to the requirement for a further trial. By way of example, the first trial of the applicant (in relation to the complainant TL) collapsed because of defence error. It would be in my view inappropriate to accede to a defendant’s request for relief where the applicant himself was the cause of the earlier trial mishap.

3. Any period of delay which is plainly excessive and beyond the norm for cases of the particular type and the reasons for such delay. A court will necessarily take into account in this context the considerable delay likely to arise in mounting any re-trial. It is now unusual to have a re-trial immediately after an aborted trial, such as occurred in years past, notably in The State v McMullen [1925] 2 I.R. 9, where the re-trial took place two days after the first trial.
4. The extent to which the case now to be met has altered from that which was considered in previous trials.”

Procedural aspects of hearings involving equality of arms issues are possible the most noteworthy development from an Irish common law viewpoint. The underlying notion is that of effective participation in the trail or proceedings. This can be seen in the legal aid cases; Airey v Ireland [1979] 2 E.H.R.R. 305; Steel and Morris v The United Kingdom (application no. 68416/01) (February 15, 2005.) Similarly, the ECtHR has held that expert witnesses are entitled to assess to the same materials. This can led to findings again the use of adult procedures in cases involving children (V. V. The United Kingdom (16 December 1999) and long sittings, e.g in Makhfi v France (October 19th 2004) where there was a sitting of 17 hours in one day in criminal trial lasting 3 days in total.

The ECtHR is realistic about evidential requirements. Thus in O’Halloran v U.K. (June 29th 2007) the court dismissed a claim of unfairness based on the conviction of a car owner where he was under an obligation to provide the name of the driver in a case of a speeding offence. The driver was compelled to name himself as the driver and thereby claimed a breach of the right to silence. That was rejected, as the court rejected that the rights were absolute; what constituted a fair trial could not be the subject of a single unvarying rule but depended on the circumstances of each case. The Court held that anyone who chose to own or drive a car knew that they subjected themselves to a regulatory regime that was imposed because the use of cars was recognised to have the potential to cause grave injury.

Where Art. 6 is engaged, a decision-maker is obliged to give reasons for its decision. This applies to Courts and other authorities as a function of their exercise of powers; see Hirvisaari v Finland (September 27th 2001) where a pension’s board made a contradictory decision that was upheld on appeal without reasons given. One exception appears to be the necessity of jurors to give reasons for their verdict.

Rights guaranteed by Art. 6 include those in respect of delay (in both criminal and civil cases) which have been more developed in Strasbourg than in domestic caselaw. In a criminal context, the Supreme Court has in the past few years provided guidance form a constitutional viewpoint on prosecutorial delay. In civil case, the principles of delay have been more developed under the ECHR; this also raises issue of effective remedies – see below. In fact, some of the more novel circumstances stem from the mixed application of articles 6 and 13 to the situation. This is an exceptional position ass there generally cannot be a breach of both Art 6 and Art13, as being specific Art. 6 takes precedence in most cases.

ARTICLE 13 – Effective remedy

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Convention is designed as rule of last resort initially directed to State’s Parties to ensure the protection of the rights set out to their citizens (and persons in their territories.) It is thus no surprise that the Convention envisages those rights to be fist and foremost secured domestically. This is the corollary of the rule whereby an applicant must exhaust domestic remedies before raising matter with the European Court of Human Rights. The basic ides is that of effective protection of the rights as set out.

Commentators have noted that this provision has been given a technical and procedural interpretation, which has reduced its scope. However, its potential must be a worry for some governments – it was not included in the incorporation by the UK of the ECHR in the Human Rights Act 1998.

Nor was art.13 used to get incorporation by the back-door; the ECtHR held that it did not require that a remedy be provided for controlling the conformity of a law with the Convention. This did not apply to secondary legislation.

Art. 13 is engaged when there has been a breach of another substantial provision of the ECHR. As a matter of engagement, an applicant must show an “arguable claim” that a right has been breached to trigger the application of Art. 13. Where a breach of art. 3 is found there is almost invariably a finding that a substantive breach has occurred.

One area where there has bee ECtHR activism is that of delay in court proceedings. In Doran v Ireland the Court noted that the remedy required by Article 13 must be “effective” in practice as well as in law. The speed of the remedy is also a consideration. In that case a breach was found because of the continued failure to pronounce judgment. The Court noted:-

“The effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees are relevant in determining whether the remedy before it is effective.”

The Court did accept the State’s argument that a new litigation based on the constitutional right to justice and to litigate has been shown to constitute an effective domestic remedy for excessively long proceedings for the purposes of Article 13 of the Convention.

The scope of judicial review had also been found to violate Art.13. In Smith & Grady v UK (September 27th 1999) a decision of the UK Military not to permit homosexuals could only be challenged on grounds of irrationality. This was found to be too high a threshold where Convention rights were at stake as it did not consider whether the restriction on rights was proportionate and justified by a pressing social need. In Hatton v UK (July 8th 2003) the ECtHR dealt with a bbreach of Art.8 in respect of nights flights at Heathrow airport. The government argued that judicla review was available, but it was held:-

“However, it is clear that the scope of review by the domestic courts was limited to the classic English public law concepts, such as irrationality, unlawfulness and patent unreasonableness, and did not allow consideration of whether the increase in night flights under the 1993 scheme represented a justifiable limitation on their right to respect for the private and family lives or the homes of those who live in the vicinity of Heathrow airport.”

The level of scrutiny will also vary with the nature of the right infringes. Those under Arts. 2 & 3 will obviously be subject to most scrutiny. This had ked to the adoption of an anxious scrutiny” test in the UK. This is under consideration in this jurisdiction.

The nature of proceedings has also been considered and the European Court of Human Rights has recognised that the nature an entitlement of a person at appellate stage will vary in accordance to the matters at issue; see Kremzow v Austria (September 21, 1993) and Ekbatini v Sweden (May 26th 1988.) Thus a written appeal was found to be inadequate where fats were in issue.

Conor Power BL

November 8th 2008.