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Harris, O'Boyle, and Warbrick: Law of the European Convention on Human Rights

Harris, O'Boyle, and Warbrick: Law of the European Convention on Human Rights (5th edn)

David Harris, Michael O'Boyle, Ed Bates, and Carla M. Buckley
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date: 21 June 2024

p. 3769. Article 6: The Right to a Fair Trialfree

p. 3769. Article 6: The Right to a Fair Trialfree

  • David Harris, David HarrisEmeritus Professor in Residence, and Co-Director, Human Rights Law Centre, University of Nottingham
  • Michael O’boyle, Michael O’boyleDeputy Registrar of the European Court of Human Rights (2006–2015)
  • Ed Bates, Ed BatesAssociate Professor, School of Law, University of Leicester
  • Carla M. Buckley, Carla M. BuckleyInternational Human Rights Lawyer
  • KreŠimir Kamber, KreŠimir KamberRegistry Lawyer, European Court of Human Rights
  • ZoË Bryanston-Cross, ZoË Bryanston-CrossRegistry Lawyer, European Court of Human Rights
  • Peter CumperPeter CumperProfessor of Law, University of Leicester
  •  and Heather GreenHeather GreenIndependent Researcher

Abstract

This chapter discusses Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial in both criminal and non-criminal cases. In all cases, it guarantees the right to a fair and public hearing trial within a reasonable time by an independent and impartial tribunal established by law. There are particular guarantees for persons subject to a criminal charge, including the right to be presumed innocent, to be informed of the charge, to adequate time and facilities to prepare the accused’s defence, to legal assistance, to examine and cross-examine witnesses, and to an interpreter.

Article 6

1.

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to 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:

(a)

to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation 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 interests 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.

1. Article 6: Generally

The right to a fair trial has a position of pre-eminence in the Convention, both because of the importance of the right involved and the great volume of applications and jurisprudence that it has attracted.1 As to the former, the Court has stressed that ‘the right to a fair p. 377trial holds so prominent a place in a democratic society that there can be no justification for interpreting Article 6(1) of the Convention restrictively’.2 As to the latter, there are more violations of Article 6 in Strasbourg cases than of any other provision.3 The cases relate mostly to criminal and civil litigation before the ordinary courts. They also involve, to an extent that could not have been predicted, proceedings before disciplinary and administrative tribunals and administrative decisions determining ‘civil rights and obligations’.

The application of Article 6 has presented the Court, and formerly the Commission, with various problems. A delicate question is the closeness with which it should monitor the functioning of national courts. The Court has studiously and properly followed the ‘fourth-instance’ doctrine, according to which it is not its function ‘to deal with alleged errors of law or fact committed by the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention.’4 The right to a fair hearing, which is one such Convention right, provides, as its wording suggests, a procedural, not a substantive, guarantee. Accordingly, the Court will intervene with respect to ‘errors of fact or law’ by a national court only insofar as they bear upon compliance with the procedural guarantees in Article 6: it does not intervene under Article 6 because such errors affect the interpretation or application of national law. This last statement is subject to a limitation established in the Court’s jurisprudence to the effect that there may be a breach of Article 6 where a national court’s ‘findings can be regarded as being arbitrary or manifestly unreasonable’.5 For example, in Navalnyy and Ofitserov v Russia,6 ‘the acts described as criminal fell entirely outside the scope of the provision under which the applicants were convicted [of embezzlement] … the criminal law was arbitrarily and unforeseeably construed … leading to a manifestly unreasonable outcome of the trial’. As to errors of fact, in Khamidov v Russia,7 the Court found that a national court had rejected the applicant’s claim for compensation for damage to his land by police units on the basis that it was unproven that the units had even entered upon the land when there was ‘abundant evidence’ to the contrary. In the Court’s view, the ‘unreasonableness of this conclusion is so striking and palpable on the face of it’, that the national court’s decisions were ‘grossly arbitrary’. In both of these cases, there was a breach of the right to a ‘fair hearing’ in Article 6(1).

The Court also allows states a wide margin of appreciation as to the manner in which national courts administer justice, for example in the rules of evidence that they use. A consequence of this is that in certain contexts the provisions of Article 6 are as much obligations of result as of conduct, with national courts being allowed to follow whatever particular rules they choose so long as the end result can be seen to be a fair trial.8

In criminal cases, the interpretation of Article 6 is complicated by the differences that exist between common law and civil law systems of criminal justice. The adversarial and inquisitorial systems that these respectively entail, the dissimilar methods of investigating crime and conducting a trial that they use, and differences in the rule of evidence necessarily make for difficulties in the interpretation of a text that provides a framework for legal proceedings throughout Europe.9 It is a challenge to the Strasbourg Court to meet p. 378the needs and circumstances of very different legal systems and still set appropriately high standards for a human rights guarantee of a fair trial.

Another problem has resulted from the application of Article 6 to administrative justice. If the Court, and formerly the Commission, has commendably acted to fill a gap by reading Article 6 as requiring that administrative decisions that determine a person’s right, for example, to practise as a doctor or to use their land, are subject to Article 6, it has experienced difficulty in establishing a coherent jurisprudence spelling out the nature of the resulting obligations for states to provide for judicial review or appeals from these decisions. The problem concerning administrative decisions has been compounded in civil as well as criminal cases by the need to apply a text that was designed as a template for trial courts within the classical system of courts to disciplinary, administrative, and other special tribunals, where the same procedural guarantees may not have such full application.10

It should also be noted that, despite their importance for the fair administration of justice, the procedural rights in Article 6 may be waived by the right holder in both civil and criminal cases. In Murtazaliyeva v Russia,11 the Grand Chamber stated:

Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. A waiver … must be voluntary and constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Moreover, the waiver must not run counter to any important public interest.

The Court has made many such pronouncements in the context of particular Article 6 rights.12

A waiver may be made ad hoc by the accused or civil litigant in the course of ordinary proceedings or as part of an organized summary procedure that may, for example, lead to a reduced sentence.13 In Natsvlishvili and Togonidze v Georgia,14 the Court confirmed that plea bargaining, which is ‘a common feature of European criminal justice systems’, is permissible under Article 6. By it, the accused obtains ‘the lessening of charges’ or receives ‘a reduction of their sentence for a guilty or nolo contendere plea in advance of trial or for providing substantial cooperation with the investigative authority’. It amounts ‘in substance’ to a waiver of Article 6 rights and, by analogy with the rules governing waiver, it must comply with the following conditions: (i) ‘the bargain’ must ‘be accepted … in full awareness of the facts of the case and the legal consequences and in a genuinely voluntary manner; and (ii) the content of the bargain and the fairness of the manner in which it [has] … been reached between the parties’ must ‘be subjected to sufficient judicial review’.

Although Article 6 applies only to a contracting party’s own judicial system, it extends beyond that in the sense that a court of a contracting party that is called upon to confirm or execute a judgment of a court of another state that is not a party to the Convention must ensure that the foreign judgment concerned is the result of a fair trial in accordance with Article 6.15

p. 379Article 6 has a further extra-territorial application in that it is a breach of Article 6 to deport or extradite an individual to another state where there are ‘substantial grounds for believing that … he would be exposed to a real risk of being subjected to a flagrant denial of justice’.16 The Court defined a ‘flagrant denial of justice’ in Othman (Abu Qatada) v UK17 as follows: ‘A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the contracting states itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.’ In the Abu Qatada case, which was the first case in which the Court found a breach of Article 6 on this basis, an order was made for the deportation of the applicant to Jordan, where he would face a retrial for offences of which he had been convicted in absentia, resulting in sentences of life and 15 years’ imprisonment, in which there was a real risk that evidence obtained by the torture of other defendants would be admitted. The use of such evidence would, the Court stated, be a ‘flagrant denial of justice’. The Court also referred in that case to other ‘forms of unfairness’ that it had in earlier cases indicated ‘could amount to a flagrant denial of justice’. These were conviction in absentia with no possibility of re-opening the proceedings;18 a trial which is ‘summary in nature and conducted with a total disregard for the rights of the defence’;19 ‘detention without any access to an independent and impartial tribunal to have the legality of the detention reviewed’;20 and the ‘deliberate and systematic refusal of access to a lawyer, especially for an individual detained in a foreign country’.

2. Field of Application

I. In the Determination of a Criminal Charge

The rights guaranteed by Article 6 apply when a ‘criminal charge’ is being determined. It does not extend to ancillary matters relevant to criminal proceedings that are not determinative of a pending ‘charge’ against the applicant, such as proceedings concerning legal aid,21 pre-trial detention,22 or committal for trial.23 Nor does it apply to cases in which the applicant brings a private prosecution24 or the applicant’s property is subject to forfeiture because of a criminal charge against a third party.25 Nor does it apply to proceedings that may result in the applicant being placed under police supervision for the prevention of crime26 or to the giving by the police of a statutory warning.27 Proceedings concerning the p. 380administration of the prison system are also not included.28 Where a criminal sanction is imposed by an administrative authority, there must be an appeal to a judicial body complying with Article 6 that has ‘full jurisdiction’ on the facts and the law; judicial review of a limited administrative law kind is not sufficient.29 Extradition proceedings to face a criminal charge in another state are not subject to Article 6.30 Nor are proceedings concerning the transfer of a convicted prisoner abroad31 or the execution of a European Arrest Warrant.32

a. The meaning of ‘criminal’

‘Criminal’ has an autonomous Convention meaning.33 Otherwise, if the classification of an offence in the law of the contracting parties were regarded as decisive, a state would be free to avoid the Convention obligation to ensure a fair trial in its discretion. It would also result, in this context, in an unacceptably uneven application of the Convention from one state to another.

In Engel and Others v Netherlands, it was established that, when deciding whether an offence is criminal in the sense of Article 6, three criteria apply: the classification of the offence in the law of the respondent state; the nature of the offence; and the possible punishment. The first criterion is conclusive in that if the national law classifies the offence as criminal, it is automatically such for the purposes of Article 6.34 This is because the legal and social consequences of having a criminal conviction make it imperative that the accused has a fair trial. In cases in which the offence is not classified as criminal in national law, ‘stricter rules’ apply, with the other two Engel criteria coming into play. In this sense, the first criterion is only of ‘relative’ weight and ‘serves only as a starting point’.35 The second and third criteria are ‘alternative and not necessarily cumulative’; but a cumulative approach may be adopted where neither criterion by itself is conclusive.36

As to the ‘nature’ of the offence, the purpose of the offence must be punitive and deterrent, not compensatory, these being the ‘twin objectives’ of a criminal penalty.37 The application of an offence to the population at large argues in favour of its criminal character;38 a criminal offence may, however, be limited to general categories of persons, such as taxpayers and road users. In the case of disciplinary offences, the Court distinguishes between offences focusing on the internal regulation of a group possessing a special status in society, such as the armed forces or prisoners, and offences committed by members of such a group that involve generally anti-social behaviour, with only the latter being subject to Article 6. In this connection, the fact that the conduct proscribed by the disciplinary offence is also a criminal offence under national law (a ‘mixed offence’) tends towards the criminal character of the offence.39 Offences relating to the functioning of a p. 381national parliament or court committed by an ‘outsider’ have been held to be criminal.40 Disciplinary offences involving professional misconduct by members of the liberal professions are seen as an internal regulatory matter that does not fall within Article 6, even though a severe punishment—such as a heavy fine, suspension, or striking-off—may be imposed.41 In Gestur Jόnsson and Ragnar Halldόr Hall v Iceland,42 an offence of contempt of court committed by not attending a court hearing was held not to be a criminal offence: although contempt of court offences may extend to the general public, the offence in this case was one that could only be committed by a ‘prosecutor, defence counsel or legal adviser’ and was akin to a disciplinary offence. Disciplinary offences by police and civil servants have been held not to be criminal, even though they may lead to dismissal.43 Although not ‘criminal’, disciplinary offences may in some cases fall within Article 6 as involving the determination of ‘civil rights and obligations’.44

The concept of a ‘criminal’ offence in Article 6 has been extended to regulatory and certain other offences that have deterrent and punitive objectives. In Öztürk v Germany,45 the Court held that an offence of careless driving, which was classified under German law as regulatory, not criminal, was nonetheless ‘criminal’ for the purpose of Article 6. The offence had characteristics that were the hallmark of a criminal offence: it was of general application, applying to all road users, and carried with it a sanction of a deterrent and punitive kind. It was also relevant that although some West European states had taken steps to decriminalize road traffic offences, the great majority of Convention parties continued to treat minor road traffic offences as criminal.46 The Court was not concerned by the ‘relative lack of seriousness of the penalty at stake’ (a modest fine as opposed to imprisonment) because the second element of the Engel test was very clearly satisfied.

Other offences that have been regarded as ‘criminal’ in the sense of Article 6 and that may, more or less convincingly, be placed within the category of regulatory offences, are ones governing trade and commerce47 or public demonstrations48 and offences under a customs code.49 Proceedings for committal to prison for non-payment of the UK community charge are also criminal.50 But an administrative fine for non-compliance with planning laws51 and a disqualification from being a company director52 are preventive, not p. 382criminal, in character. In Jussila v Finland,53 the Grand Chamber ruled that the imposition of a tax surcharge as a financial penalty for tax evasion involved a ‘criminal’ charge within Article 6. However, the Grand Chamber drew a distinction between ‘the hard core of criminal law’ and tax surcharges and other regulatory offences, with the Article 6 guarantees ‘not necessarily applying with their full stringency’ to the latter.54 It did so on the basis that the latter ‘do not carry any significant degree of stigma’.

As to the third criterion, the Court looks to the nature and severity of the possible, not the actual, punishment.55 In Engel and Others v Netherlands,56 the Court held that a punishment of imprisonment belonged to the criminal sphere unless its ‘nature, duration or manner of execution, was not such that its effect could be “appreciably detrimental”’. Applying both the second and third criteria, the Court then found that military disciplinary offences involving the publication of a periodical tending to undermine army discipline and the driving of a jeep irresponsibly that could lead to three or four months’ imprisonment were ‘criminal’, but that offences of being absent without leave that carried possible penalties of just two days’ strict arrest were not. In other cases, the Court has indicated that the severity of a possible fine is a relevant factor.57 However, the high fine actually imposed and the absence of a statutory limit did not in itself suffice to render the offence criminal in Gestur Jόnsson and Ragnar Halldόr Hall v Iceland.58 The possibility of a fine being converted into imprisonment for non-payment has been taken into account,59 as has non- entry on a criminal record.60 Disqualification from holding public office61 or the deduction of points that may lead to the loss of a driving licence for road traffic offences62 may be criminal penalties, as may the demolition of a building for lack of planning permission;63 but the withdrawal of a liquor licence, although severe in its consequences, was held not to be.64 Nor was a penalty of disqualification from standing for election for exceeding election expenses limits.65

b. The meaning of ‘charge’

For Article 6 to apply, a person must be subject to a criminal ‘charge’. Like the word ‘criminal’, ‘charge’ has an autonomous Convention meaning. ‘Charge’ has a ‘substantive’, not a ‘formal’, meaning, so that it is necessary ‘to look behind’ the appearances and investigate the realities of the procedure in question.66 A criminal ‘charge’ exists ‘from the moment that an individual is officially notified by the competent authority of an allegation that p. 383he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him.67 In practice, an applicant has been found to be subject to a ‘charge’ when arrested for a criminal offence;68 when formally charged with one;69 when, in a civil law system, a preliminary investigation has been opened and the person has ‘officially learnt of the investigation or begun to be affected by it’;70 and when questioned as a suspect.71 A person whose status in an investigation is that of a witness may be ‘substantially affected’ where in reality it is apparent that they are being questioned as a suspect.72 In other cases, a person has been ‘substantially affected’ when his bank account has been frozen73 his documents seized,74 or his shop closed.75 In Farzaliyev v Azerbaijan,76 the applicant was held to have been ‘charged’ even though he learnt that criminal proceedings had been instituted against him only after they had been discontinued and a ‘linked’ civil claim for compensation lodged in its place. An MP with parliamentary immunity became subject to a ‘charge’ when the prosecuting authorities requested Parliament to lift his immunity.77

Most of the case law on the meaning of ‘charge’ has concerned civil law systems of criminal justice. In common law jurisdictions, applicants have been held to be subject to a ‘charge’ when obliged to answer questions under arrest;78 when the prosecution case against them is completed;79 and when they have been formally charged with an offence.80

Although the Convention does not guarantee a right of appeal, Article 6 applies to any appeal proceedings against conviction or sentence that a state provides.81 Constitutional court proceedings involving claims alleging a violation of constitutional rights are included insofar as they are decisive for the outcome of a criminal case.82 Article 6 ceases to apply once the criminal proceedings against the accused are completed, or when they are discontinued.83

Any separate sentencing proceedings are included, the ‘charge not being determined until the sentence has been fixed’. But Article 6 does not apply to an application for a retrial or a plea of nullity: once finally convicted of an offence, a person is no longer ‘charged’ with it.84 However, it may apply to extraordinary remedies after a final conviction to correct a judicial error or miscarriage of justice where the court is, in effect, called upon to p. 384determine the same charge again.85 Article 6 applies to the execution of judgments of acquittal in criminal cases, the Hornsby principle applying to criminal cases.86

II. In the Determination of Civil Rights and Obligations

a. The meaning of ‘civil’ rights and obligations
Private law meaning

Article 6 applies also when a person’s ‘civil rights and obligations’ are being determined. In their early jurisprudence, the Strasbourg authorities established that the phrase ‘civil rights and obligations’ incorporated, by the use of the word ‘civil’, the distinction between private and public law, with ‘civil’ rights and obligations being rights and obligations in private law.87 This distinction has long been significant in civil law systems for jurisdictional and other purposes and has more recently become important in UK administrative law.88 On the basis of it, rights and obligations in the relations of private persons inter se clearly fall within Article 6, but some rights and obligations at issue in the relations between the individual and the state (eg the right to nationality and the obligation to pay taxes) do not, the problem in the latter case being to know where to draw the line. Criminal law is in a special position. Decisions taken in the ‘determination of … any criminal charge’ are included by a separate part of the wording of Article 6(1).89 Ancillary decisions relating to criminal proceedings are not subject to Article 6 on the criminal side and not otherwise subject to Article 6 as decisions determinative of ‘civil rights and obligations’. They are excluded both because of the distinction between private and public law and also, as the Court has sometimes stated, because, if certain decisions in criminal proceedings are specifically covered by Article 6(1), others, by inference, are not.90

It therefore follows that the Convention does not guarantee a fair trial in the determination of all of the rights and obligations that a person may arguably have in national law. However, the gaps in the coverage of Article 6 have been significantly, if somewhat confusingly, reduced by interpretation. Indeed, whereas the Court occasionally still relies upon the public law/private law divide when excluding rights or obligations as not being ‘civil’,91 more recent jurisprudence, by which more and more rights and obligations have been brought within Article 6, is not always easy to explain in terms of any distinction between private and public law that is found in European national law.

An autonomous Convention meaning

‘Civil’ has an autonomous Convention meaning, so that the respondent state’s classification is not decisive.92 In a particular case, therefore, a right that is regarded as a matter of public law in the legal system of the respondent state may be treated as falling within p. 385Article 693 and vice versa. Although adopting an autonomous Convention meaning of ‘civil’ rights and obligations, the Court has refrained from formulating any abstract definition of the term, beyond distinguishing between private and public law.94 It has, instead, preferred an inductive approach, ruling on the particular facts, or categories, of cases as they have arisen. Even so, there are certain general guidelines that emerge from the case law. First, ‘only the character of the right at issue is relevant’.95 The ‘character of legislation (civil, commercial, administrative law, etc) which governs how the matter is to be determined … and that of the authority which is invested with jurisdiction in the matter (ordinary court, administrative body, etc) are therefore of little consequence’.96 This guideline has minimal significance for cases involving disputes between private persons, which will invariably be governed by national private law and usually be within the jurisdiction of the ‘ordinary courts’. It may, however, be of critical importance in cases that involve the relations between a private person and the state. In national law systems that traditionally have made use of the distinction between private and public law, the classification of such cases generally turns upon whether the state is acting in a sovereign or non-sovereign capacity in its dealings with the private person concerned. But, for the purpose of Article 6, whether the state has ‘acted as a private person or in its sovereign capacity is … not conclusive’;97 instead, the focus is entirely upon the ‘character of the right’.

Second, when determining the ‘character of the right’, the existence of any ‘uniform European notion’ that can be found in the law of the contracting parties is influential. This inference can be drawn from the Feldbrugge and Deumeland cases.98 There the Court found that there was no ‘uniform European notion’ (which by implication would have been followed) as to the private or public law character of the social security rights before it and was forced to make a choice in respect of rights it considered to have a mixed private and public law character.99

Third, although the classification of a right or obligation in the law of the respondent state is not decisive, that law is nonetheless relevant, in that it necessarily determines the content of the right or obligation to which the Convention concept of ‘civil’ rights and obligations is applied.100 For this reason, despite the autonomous nature of ‘civil’ rights and obligations, it would be possible for the same right or obligation to be subject to Article 6 as it exists in one legal system but not as it is found in another.

Rights and obligations in the relations between private persons

In accordance with the position uniformly found in European national law, the rights and obligations of private persons in their relations inter se are ‘civil’ rights and obligations. Thus, cases concerning, for example, such relations in the law of contract,101 the p. 386law of tort,102 family law,103 and employment law104 have been regarded as falling within Article 6.

State action determining private law rights and obligations

The position is more complicated in cases involving the relations of private persons with the state. In accordance with its approach in the König case,105 in such cases the Court looks solely to the character of the right or obligation that is the subject of the case when deciding whether Article 6 applies. If that right or obligation falls within private law, then any state action that is directly decisive for it must be either taken by a tribunal that complies with Article 6 or, if it is administrative action, challengeable before such a tribunal.106 What is remarkable is the identity and nature of the rights and obligations of private persons that the Court has recognized as private law rights and obligations in this context. Most significantly, it has recognized certain rights of a very general character, such as rights that have a pecuniary nature or consequences, as being ‘civil’ rights. When, as is common, state action is determinative of such rights, it is controlled by Article 6.

Pecuniary rights

The key determinant in cases involving state action is often whether the right or obligation in question is pecuniary in nature or, if not, whether the state action that is decisive for the right nonetheless has pecuniary consequences for the applicant.107 If so, the case will generally fall within Article 6,108 unless the state is acting within one of the areas that ‘still form part of the hard core of public authority prerogatives’,109 such as taxation. Although the Court commonly states that ‘merely showing that a dispute is “pecuniary” in nature is not in itself sufficient to attract the applicability of Article 6’,110 this is mainly intended to allow for the ‘public authority prerogative’ exception. The paragraphs that immediately follow concern rights and obligations that are sometimes classified as ‘civil’ under other headings by the Court but that all have a pecuniary dimension.

The right to property

The right to property is clearly a right with a pecuniary character. Thus, decisions by the state concerning the expropriation111 or the regulation of the use112 of private land have been held to be subject to the right to a fair hearing. With regard to personal property, p. 387decisions by the state as to a person’s capacity to administer property,113 or ones that are otherwise decisive for personal property rights,114 are controlled by Article 6.

The right to engage in a commercial activity or to practise a profession

The right to engage in a commercial activity, which similarly has a pecuniary character, is also a civil right.115 Hence, state action by way of the withdrawal of a commercial licence or other authorization to engage in a commercial activity is controlled by Article 6.116 The same is true of the right to practise a liberal profession.117 Article 6 applies to the grant of a licence or other authorization to undertake a commercial activity or practise a profession as well as a decision to withdraw it. Reversing its approach in König v Germany,118 in which it had emphasized the legitimate expectation of a licence holder in its continuance, in the Benthem and later cases119 Article 6 has been applied to applications for new licences, provided that the grant of the licence is not a discretionary decision by the state.120

The right to compensation for illegal state action

The Court’s jurisprudence also recognizes as ‘civil’ the right to compensation from the state for injury resulting from illegal state acts, again on the basis of its pecuniary nature. Thus, in X v France,121 the Court held that a claim for damages in an administrative court for contracting AIDS from a blood transfusion because of government negligence fell within Article 6. Although the case concerned the exercise of a general regulatory power by a minister and hence was clearly a matter of public law in France, its outcome was ‘decisive for private rights and obligations’, namely those concerning pecuniary compensation for physical injury.122

The X case has been followed by other cases involving claims for compensation for illegal state acts, including claims for compensation for ill-treatment by the police;123 unlawful detention;124 unreasonable delay in judicial proceedings;125 breach of contract;126 the seizure of property;127 and a miscellany of other claims.128

Statutory rights to compensation against the state for ‘wrongful conviction and unjustified detention’ in connection with criminal proceedings also fall within Article 6.129 The cases have involved compensation for detention where the proceedings are discontinued,130 the accused is acquitted,131 or the conviction is quashed on appeal.132 Such cases concern a right to compensation provided by the state under national law where the detention is not necessarily in breach of Article 5 of the Convention, but the detainee is not finally convicted. A claim under a state’s criminal injuries compensation scheme may also, because of its pecuniary character, fall within Article 6 if the scheme provides for a legal right to compensation, and not an ex gratia payment.133

p. 388The right to social security and social assistance

One of the most remarkable developments in the Court’s jurisprudence has concerned the classification of rights to social security and social assistance which the Court has held fall within Article 6. Initially, in the companion cases of Feldbrugge v Netherlands134 and Deumeland v Germany,135 the Court adopted a balancing approach, and in both cases found that the private law aspects of the social security rights concerned outweighed their public law aspects, so that Article 6 applied. However, the Court has since established that ‘the development in the law that was initiated by those judgments 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’.136 In addition, the Court has stressed that such rights are of a pecuniary, or economic, nature.137 Since the Court adopted this position, disputes concerning social security and social assistance rights have routinely been accepted as falling within Article 6, commonly without argument to the contrary by the respondent state. The right need not be linked to a p. 389contract of employment138 or depend upon contributory payments.139 There must, however, be entitlement as a matter of legal right for those who qualify: disputes about benefits or assistance given by the state in its discretion are not included.140 This is not to do with the civil or non-civil character of the benefit or assistance, but because Article 6 extends only to disputes about ‘arguable rights’.

Non-pecuniary civil rights and obligations

Although an important touchstone, the pecuniary dimension of a right or obligation is not the only test for a ‘civil’ right or obligation. Other rights or obligations of private persons may qualify, again by reference to the general perception of them in national law as private law rights or obligations with which the state may not interfere without due process. One such right is the right to respect for family life. Thus, state action that is directly decisive for this right, such as decisions placing children in care141 or restricting the contact of prisoners with their families,142 have been held to be subject to Article 6. In Alexandre v Portugal,143 the impact on the applicant’s employment prospects brought the content of their criminal record within Article 6. Other non-pecuniary rights that have been recognized as ‘civil rights’ are the rights to life;144 physical integrity;145 liberty;146 respect for private life;147 a reputation (and a remedy to protect it);148 respect for one’s home;149 freedom of expression150 and assembly (unless used for political purposes);151 freedom of association;152 education;153 freedom from discrimination;154 and a healthy environment.155 Most of the rights listed in this paragraph are Convention rights.156

p. 390In De Tommaso v Italy,157 the Grand Chamber held that Article 6 applied to decisions imposing preventive measures relating the applicant’s ongoing criminal activities that restricted his civil rights (primarily freedom of movement). In doing so, the Grand Chamber noted that ‘there had been a shift in its own case-law towards applying the civil limb of Article 6 to cases which might not initially appear to concern a civil right but which may have direct and significant repercussions on a private right belonging to an individual’.

Public law rights and obligations

Following from the private law reading of the word ‘civil’, claims concerning a number of rights and obligations are not subject to Article 6 because of their public law character. However, their number is limited and in decline.158 The Court’s approach to the exclusion of rights and obligations on public law grounds is governed by two general considerations. First, in accordance with the object and purpose of the Convention, a ‘restrictive interpretation’ must be adopted when deciding whether a right or obligation is excluded from the safeguards of Article 6.159 Second, the Convention is a living instrument that must be interpreted dynamically.160 The significance of this second consideration was explained by the Court in Ferrazzini v Italy,161 where the Court noted: ‘Relations between the individual and the State have clearly developed in many spheres during the 50 years which have elapsed since the Convention was adopted, with State regulation increasingly intervening in private law relations.’ However, the Court continued, ‘rights and obligations existing for an individual are not necessarily civil in nature’.162 Giving political rights and obligations, rights in some cases concerning public employment, the expulsion of aliens, and the obligation to pay taxes as examples, the Court stated that rights and obligations that relate to matters that ‘still form part of the hard core of public authority prerogatives’163 remain excluded. In the case of such rights or obligations, the fact that there may in some cases be a pecuniary dimension to the right or to the consequences of its infringement is outweighed or overridden by its fundamentally public law character.

The obligation to pay tax

Ferrazzini v Italy concerned the obligation to pay taxes to the state, which was held not to be subject to Article 6: although the obligation has pecuniary elements, ‘the public nature of the relationship between the taxpayer and the tax authority remains predominant’.164 In contrast, in Schouten and Meldrum v Netherlands,165 it was held that Article 6 does apply to the applicant’s obligation to pay social security contributions: following the approach it had used in the Feldbrugge case in respect of social security benefits, the Court decided that the private law features of the obligation outweighed its public law features.

p. 391Political rights and obligations

As to political rights and obligations, in Pierre-Bloch v France,166 it was held that the right to stand for election to a national parliament does not fall within Article 6, because ‘such a right is a political and not a “civil” one’. There the applicant, who had been elected to the French National Assembly, was found to have exceeded the election expenses limit and as a penalty was disqualified from standing for election for a year, made to forfeit his seat, and required to pay a sum equal to the expenses excess. Despite the pecuniary consequences of the decision, Article 6 was held not to apply. Generally, the right to engage in political activities is not a ‘civil’ right, so that, for example, disputes concerning the right to vote,167 the membership or dissolution of a political party,168 or the obligations of an elected officer holder169 do not fall within Article 6. Disputes concerning the election of an officer of an NGO170 or of an employees’ council representative171 are excluded on a similar basis.

Entry, conditions of stay, and removal of aliens

Disputes concerning the entry, conditions of stay, and removal of aliens also fall on the public law side of the line.172 In Maaouia v France,173 the Court held that proceedings concerning the rescinding of an exclusion order against an alien physically present in France did not concern his ‘civil’ rights. More generally, the Court stated that ‘decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations’, and that this is so even though, in the case of an exclusion order, the decision ‘incidentally’ has ‘major repercussions on the applicant’s private and family life or on his prospects of employment’.174 The approach in the Maaouia case was applied to the extradition of aliens in Mamatkulov and Askarov v Turkey.175 In the Maaouia case, the Court reached its conclusion that Article 6 did not apply to the ‘expulsion of aliens’ on the basis that the Seventh Protocol to the European Convention on Human Rights provides procedural safeguards for aliens who are to be expelled, which would not have been necessary if the right to a fair hearing in Article 6 already applied. This reasoning cannot apply to the entry or conditions of stay of an alien, to which the Seventh Protocol does not apply. It is likely that the Court would here rely upon the fact that these matters are ‘part of the hard core of public authority prerogatives’.176

p. 392Employment in the civil service

To some extent, rights and obligations arising out of employment in the civil service are excluded from Article 6, although the extent of this exception is now more limited than formerly. In Vilho Eskelinen v Finland,177 the Court introduced a new two-part test, which starts from the presumption that Article 6 does apply. For it not to do so, first, ‘the state in its national law must have expressly excluded access to a court for the post or category of staff in question’. Second, where this condition is met, Article 6 nonetheless still applies unless the national law exclusion is justified on ‘objective grounds in the state’s interest’. These ‘grounds’ must relate not to the nature of the civil servant’s employment but to the ‘subject matter of the dispute’ between the civil servant and the state, with the latter being required to show that the dispute ‘is related to the exercise of state power or that it has called into question the special bond of trust and loyalty’ between civil servants and the state.178 Thus, even though there is no right of access to a court in national law in respect of such disputes, Article 6 will apply—and access to a court compliant with it will be required—to ‘ordinary labour disputes, such as those relating to salaries, allowance or similar entitlements’, regardless of the nature of the employment or status of the civil servant. In the Vilho Eskilenen case, which concerned a salary dispute between the applicant policemen, who were civil servants, and the state, the government’s defence fell at the first hurdle, as the applicants did have a right of access to a court to decide the dispute in national law. Even if this had not been the case, Article 6 would have applied because the dispute was an ‘ordinary labour dispute’. Applying the two parts of the Vilho Eskelinen test, the Court has found Article 6 to be applicable to disputes concerning the employment of public prosecutors;179 disciplinary proceedings against police officers;180 the dismissal of ministry officials;181 and disputes concerning employment in a national parliament.182 The test has also been held to apply to ordinary labour disputes concerning the employment of judges, on the basis that ‘[a]lthough the judiciary is not part of the ordinary civil service, it is considered part of typical public service’.183 In Grzęda v Poland,184 the Grand Chamber rejected a respondent government argument that a legislative amendment by which the competence to elect the judicial members of the body that was responsible for safeguarding the independence of the judiciary was transferred from the judiciary to the legislature could be justified on ‘objective grounds in the state’s interest.’ The change was part of a general reform of the judicial system which, the Grand Chamber implied, resulted in ‘undermining the independence of the judicature and its governing bodies’. Finding in favour of the applicant judge, whose membership of the body had been prematurely terminated as a consequence of the change, the Grand Chamber stated that ‘the exclusion of the applicant from a fundamental safeguard [judicial oversight] for the protection of an arguable civil right closely connected the protection of judicial independence cannot be regarded as being in the interest of a state governed by the rule of law’.

p. 393In contrast to these cases, in Suküt v Turkey,185 Article 6 was held not to apply to a dispute concerning the discharge of a soldier for breaches of discipline, the ‘special bond of trust and loyalty’ between the applicant and the state being central to the dispute. Although the Vilho Eskelinen case is a welcome step in the right direction, the Court needs to go further. An approach by which a dispute concerning employment in the public service in which the applicant has an arguable case under national law should be subject to Article 6 without exception.

Other public law rights and obligations

An obligation which is a part of ‘normal civic duties in a democratic society’ also falls outside Article 6, including obligations to pay a fine186 or to give evidence in court proceedings.187 Cases concerning the rights to citizenship and a passport;188 liability for military service;189 certain matters relating to the administration of justice;190 the interception by the state of mail and telephone calls;191 medical treatment;192 public housing;193 and the award of administrative contracts194 have also been excluded.

b. The meaning of ‘rights and obligations’

By ‘rights and obligations’ in Article 6 are meant ‘rights and obligations’ ‘which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether … [they are] protected under the Convention’.195 The requirement is only that the applicant have a ‘tenable’ argument, not that he will necessarily win.196 If the applicant has no arguable right under national law,197 Article 6 does not apply. An ‘unfettered’ p. 394discretionary decision by the state is not subject to Article 6.198 However, Article 6 does apply where the decision is accompanied by a right in national law to go to court to challenge the legality of the decision with regard to ‘matters such as ruling whether a decision was arbitrary or ultra vires or whether there were procedural irregularities’ if the ‘advantage or privilege, once granted, gives right to a civil right’.199 Thus in Morovni Inštitut v Slovenia,200 Article 6 applied to the discretionary decision taken when the applicant unsuccessfully tendered for a discretionary research award. This was because in national law the applicant institute ‘clearly enjoyed a procedural right to the lawful and correct adjudication of the tenders’ and the decision was directly decisive for the applicant’s pecuniary civil right.

Article 6 does not control the content of national law; it guarantees only a procedural right to a fair hearing in the determination of whatever legal rights and obligations a state chooses to provide in its law, so long as they comply with Convention rights. For example, in James v UK,201 the applicants had been deprived of their ownership of certain properties by the exercise by their tenants of a right to purchase given to them by statute. Although the case concerned their right to property, which was a ‘civil’ right, Article 6 did not come into play because the applicants had no arguable right in English law that had been infringed. However, a limit to this approach was set in Fayed v UK.202 There the applicants wanted to bring a claim in defamation arising out of a government inspector’s report under the Companies Act 1985 that found they had been dishonest. Whereas the law of defamation extended to cover the facts of their claim, it would have been successfully met by a defence of privilege. After referring with approval to its approach in the James case, the Court drew a distinction between cases in which there was no ‘legal basis’ in national law for the claim and others in which there was such a basis, but the claim could be met by a defence. In the ‘no legal basis’ kind of case, the reasoning in the James case applied, but in the Fayed kind of case the right of access to a court in Article 6 dictated some degree of Convention ‘restraint or control’. On the facts of the case, the Court decided that the restriction upon the right of access presented by the privilege defence to the applicants’ defamation claim could be justified as having a legitimate aim and as being in proportion to its attainment.

c. A ‘contestation’ or dispute concerning civil rights and obligations

For Article 6 to apply, there must be a ‘dispute’ at the national level, between two private persons or between the applicant and the state, the outcome of which is determinative of the applicant’s civil rights and obligations. The need for a ‘dispute’ follows from the use of the word ‘contestation’ in the French text of Article 6. Generally, the Court has interpreted the ‘dispute’ requirement in such a way that it is not a significant hurdle.203 It has held that ‘contestation’ should not be ‘construed too technically’ and that it should be given a ‘substantive rather than a formal meaning’.204 This approach is adopted as being p. 395in accordance with the spirit of the Convention and because the term ‘contestation’ has no counterpart in the English text, a fact that has led to hesitation as to its importance.205

A dispute may concern a question of law or of fact.206 It need not concern the actual existence of a right: it may relate instead to its ‘scope … or the manner in which the beneficiary may avail himself of it’.207 The dispute must be ‘genuine and of a serious nature’.208 This requirement may exclude a case of a hypothetical kind, such as a case raising the question whether proposed legislation would, if enacted, infringe the applicant’s rights,209 or a case in which the applicant does not pursue their claim seriously, for example by not presenting evidence.210 For a dispute to be ‘genuine and serious’, there must also be something ‘at stake’ for the applicant.211 It is not necessary that damages be claimed for a dispute to be ‘genuine and serious’; a request for a declaratory judgment is sufficient.212

A ‘dispute’ must be justiciable, ie it must be one that inherently lends itself to judicial resolution. This was relevant in Van Marle v Netherlands.213 There the Court held that Article 6 was not applicable to a dispute concerning the applicants’ registration as accountants. According to the reasoning in the Court’s judgment, this was because the dispute was concerned essentially with the assessment of the applicants’ competence as accountants, which was more akin to school or university examining than judging, whereas Article 6 is aimed at regulating only the latter.

d. When are civil rights and obligations being determined?

Supposing that a dispute exists, it is still necessary to show that civil rights and obligations are being ‘determined’ by the decision to which it is sought to apply Article 6(1). This will be the case when the decision is ‘directly decisive’ for the civil rights or obligations concerned.214 This requirement is clearly met where the determination of the applicant’s civil rights and obligations is the primary purpose of the decision-making process. Thus, Article 6 undoubtedly applies to a personal injuries claim in tort between private individuals before the ordinary courts,215 and to a claim before an administrative court for negligence by a state hospital.216

In addition, it was held in Ringeisen v Austria217 that Article 6 extends to proceedings which do not have the determination of ‘civil rights and obligations’ as their primary purpose, but which nonetheless are decisive for them. In that case, the applicant had entered into a contract to buy land from third parties. The sale was subject to the approval of an p. 396administrative tribunal, which refused permission because the land would be used for non-agricultural purposes. The object of the proceedings before the tribunal—the granting of permission by reference to the public interest—clearly pertained to public law. Nonetheless, the Court held that civil rights—contract rights—were being determined.

In Ringeisen v Austria, the Court stated only that for Article 6 to apply the proceedings must be ‘decisive’ for civil rights and obligations. It was in Le Compte, Van Leuven and De Meyere v Belgium218 that the Court established that they must be ‘directly decisive’ and that a ‘tenuous connection or remote consequences do not suffice’. In that case, the applicants were Belgian doctors who had been temporarily suspended from medical practice by the competent disciplinary bodies. The Court accepted that the primary purpose of the disciplinary proceedings was to decide whether breaches of the rules of professional conduct had occurred. Nonetheless, the proceedings were ‘directly decisive’ for the applicants’ private law right to practise medicine because the suspension of the applicants’ exercise of that right was a direct consequence of the decision that breaches of the rules had occurred.219

In contrast, the applicants ‘civil rights’ were not ‘directly’ being determined in Athanassoglou v Switzerland.220 In that case, a decision to renew a licence for a nuclear power station was not subject to Article 6 because, despite the ramifications for the public, it was not directly decisive for the rights to life, physical integrity, and property of applicants living nearby, who were not able to produce evidence showing that the station’s operation exposed them to a specific and imminent danger of an infringement of these rights. But civil rights were being determined in proceedings in which an association challenged the building of a dam because of its direct impact on the lifestyle and property of its members as well as on public interest environmental grounds.221

Nor does Article 6 apply where a decision being challenged is important for the applicant economically but does not determine their legal rights. Thus, an application requesting a court to annul a presidential decree in favour of an airport runway as being unconstitutional did not fall within Article 6. While it was prejudicial to their economic activities relating to adjacent land that they owned, it left their legal rights intact.222

Despite the limiting effect of the Le Compte case, the impact of the Ringeisen case in extending Article 6 to cases in which the ‘determination’ of civil rights and obligations is a consequence, but not the purpose, of the proceedings has been considerable. In particular, it has provided the basis upon which cases involving decisions by administrative tribunals and, most significantly, by the executive regulating private rights in the public interest are brought within the reach of Article 6.

Civil rights and obligations may be determined in criminal proceedings. This is so, for example, where a criminal prosecution is the remedy provided in national law for the enforcement of a civil right, as, for example, in some legal systems in connection with the right to a reputation.223 Article 6 also applies when a legal system allows the victim of a p. 397crime to be joined as a civil party in criminal proceedings against the offender in order to obtain damages or otherwise protect their civil rights; however, it does not apply in such cases where the victim’s purpose in being joined is to punish the offender or to intervene on an actio popularis basis, not to obtain a personal civil remedy.224

Finally, proceedings before a constitutional court involve the determination of civil rights and obligations where their outcome is capable of being decisive for those rights.225

e. The application of Article 6(1) in the context of administrative decisions

Many decisions that are determinative of a person’s civil rights and obligations are taken by the executive or some other body that is not a tribunal in the sense of Article 6. What Article 6 requires in such cases is the possibility of judicial review by a tribunal that does comply with Article 6. The Court has identified the requirement as being an autonomous Convention requirement of ‘sufficient jurisdiction’ (or ‘sufficient review’), not necessarily ‘full jurisdiction’.226 In adopting this approach, the Court had ‘regard to the fact that it is often the case in relation to administrative law appeals in the Member States of the Council of Europe that the extent of judicial review over the facts of a case is limited’, with the court or tribunal reviewing ‘the previous proceedings rather than taking factual decisions’.227 The requirement is thus not one of ‘access to a court which can substitute its one assessment or opinion for that of the administrative authorities’.228 However, where the factual evidence is ‘a decisive aspect’ of the administrative decision, the reviewing tribunal must have jurisdiction to consider it. Thus, in Ramos Nunes de Carvalho e Sa v Portugal,229 there was a violation of the right of access when Portugal’s Supreme Court, which was indisputably an Article 6 tribunal, did not have jurisdiction to assess the ‘factual evidence’ on the basis of which the applicant judge was disciplined by the judiciary’s professional body, which was not such a tribunal.

In assessing sufficiency, the Strasbourg Court has regard to ‘the powers of the judicial body in question and such factors as (a) the subject-matter of the decision appealed against;230 (b) the manner in which the decision was arrived at, in particular the procedural guarantees available in the proceedings; (c); the content of the dispute, including the desired and actual grounds of appeal’.231 The Grand Chamber added that jurisdiction will be sufficient if the tribunal is competent to rule on the claims that the applicant wishes to make.232 For example, in Bryan v UK,233 although the judicial review proceedings before the English High Court did not permit a re-hearing of the facts, they did allow the p. 398applicant to claim errors of law in a planning decision, which was all that he sought to claim. However, the tribunal must have the power to quash a decision, and either take a fresh decision or remit the case to the same or another body for a decision.234

The Court’s interpretation of the requirements of Article 6 in respect of administrative decisions by state authorities largely resolves a problem that the Court had created for itself by its early ruling in the Ringeisen case. At the same time, inventive though it is, it involves a very forced reading of Article 6, and one that is not always easy to apply. The same text of Article 6 now has different meanings according to whether the initial decision is by a court or the administration. However, the result is to uphold the rule of law in cases of administrative action, although sometimes in a confusing way.

The distinction between ‘full jurisdiction’ and ‘sufficient review’ is relevant in the context of the review of international organization decisions, as well decisions at the national level. Al Dulimi and Montana Management Inc v Switzerland235 concerned UN Security Council Resolution 1483, which required UN member states to freeze and confiscate the property of individuals and entities listed by a Security Council Sanctions Committee because of their connections with Saddam Hussein’s former Iraqi government. The applicants’ property was frozen and ordered to be confiscated by the respondent state and, although the Committee’s listing procedure was notoriously deficient in ‘fair trial’ terms, the Swiss courts found themselves unable to rule on the applicants’ claims that their listing had violated Article 6 of the Convention because Switzerland was bound to implement Resolution 1483: in their view, their competence extended only to confirming that the applicants’ names were on the list and that the properties belonged to them. The Grand Chamber held, by 15 votes to two,236 that, although the Swiss courts did not have ‘full jurisdiction’ to examine all questions of fact and law, they should have exercised judicial review to the point of affording the applicants ‘a genuine opportunity to submit appropriate evidence to a court, for examination on the merits, to seek to show that their inclusion on the impugned lists had been arbitrary’.

f. The stages of proceedings covered by Article 6(1)

Article 6 normally begins to apply in ‘civil rights and obligations’ cases when court proceedings are instituted.237 But, just as in criminal cases it may apply before the competent court is seized, so too in civil cases Article 6 may begin to run before the writ is issued.238 For example, this has been held to be so in cases in which the applicant must exhaust a preliminary administrative remedy under national law before having recourse to a court or tribunal239 or cases in which the applicant objects to a draft plan for land consolidation prior to a tribunal hearing.240

p. 399Article 6 applies not only to the proceedings in which liability is determined, but also to any separate court proceedings in which the amount of damages is assessed241 or costs are allocated,242 since these proceedings are a continuation of the substantive litigation. Article 6 also applies beyond the trial stage to appeal and judicial review proceedings concerning civil rights and obligations.243 The reasonable time guarantee applies until the time for an appeal or application for judicial review by the parties expires and the judgment becomes final.244

Article 6 does not guarantee a right to have a terminated ‘civil rights and obligation’ case reopened. However, should an extraordinary remedy lead automatically or in the specific circumstances to a full reconsideration of the case, Article 6 applies in the usual way to the ‘reconsideration’ proceedings.245 Moreover, Article 6 has also been found to be applicable in certain instances where the proceedings, although characterized as ‘extraordinary’ or ‘exceptional’ in domestic law, were deemed to be similar in nature and scope to ordinary appeal proceedings, the national characterization of the proceedings not being regarded as decisive for the issue of applicability.246

g. Execution of judgments

Article 6 applies to the execution of judgments in ‘civil rights and obligations’ cases. In particular, the reasonable time guarantee will apply to any delays for which the state is responsible in its execution. This has proved to be an important ruling, with many cases of violations. The leading case is Hornsby v Greece,247 in which the state authorities had for more than five years not taken the measures necessary to comply with a final judgment in the Greek courts entitling the applicants, who were UK nationals, to establish a private English school in Greece. The Court justified its extension of the ‘right to a court’ to the execution of judgments, which is not expressly mentioned in Article 6, on the basis that the ‘right to a court’ would be ‘illusory’ if a final judgment were allowed to remain inoperative to the detriment of one party and that ‘to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention’.

The cases have concerned such matters as the execution by the state of judgments requiring its authorities to pay compensation248 or to provide public housing.249 In Okyay v Turkey,250 there was a breach of Article 6 where the administrative authorities failed to p. 400comply with court orders upheld by the Supreme Administrative Court for the closure of state power plants, which were causing pollution. A Turkish Council of Ministers’ decision that the plants should continue to operate despite the court orders was stated by the Strasbourg Court in a strongly worded judgment to be ‘obviously unlawful under domestic law’, resulting in a situation that ‘adversely affects the principle of a law-based state, founded on the rule of law and the principle of legal certainty’.

Under Hornsby, the state must also ensure the execution of judgments against third parties who are not state actors, so that, for example, it must take action to ensure that private persons comply with judgments against them for the payment of compensation,251 the payment of divorce maintenance,252 the transfer of custody of an adopted child,253 the eviction of tenants,254 and the demolition of houses built without planning permission.255 In Turczanik v Poland,256 the state was required to ensure that a bar association allocated a barrister to chambers as required by a court judgment. The state must act itself; it cannot require the litigant to initiate enforcement proceedings.257 Police assistance must be provided for court bailiffs where this is needed.258 No particular procedure for execution is required; the Court looks only to see that the procedure followed by the state is adequate and effective.259 Lack of available state funds260 or other resources261 or impracticability262 are not good reasons for the state’s failure to execute a judgment against it. But a delay may be justified ‘in particular circumstances’, provided that the delay does not ‘impair the essence of the right protected under Article 6’.263 The onus is on the state to act and to justify any delay.264 In Jasiūnienė v Lithuania,265 the government’s obstructive attitude led to the Court to characterize the non-execution as an ‘aggravated’ breach of Article 6(1). Delays in the payment of a monetary award against the state of one year or more have been found to be excessive.266 In Burdov v Russia (No 2),267 the Strasbourg Court held that the respondent government’s failure to satisfy judgment debts for several years after the Court’s first judgment in the case in 2002268 reflected a ‘persistent structural dysfunction’. Noting that there p. 401were over 700 similar cases pending before it, the Court, following its pilot judgment procedure, required the respondent state to adopt measures to afford adequate and sufficient redress to victims of non-payment in these cases within one year of its 2009 judgment.

As well as the execution of final judgments, Article 6 may also apply to preliminary proceedings. In Micallef v Malta,269 reversing earlier case law, the Court held that Article 6 applies to requests for interim measures, such as injunctions, where the ‘measure can be considered effectively to determine the civil right or obligation at stake’. The case concerned the hanging out washing over a neighbour’s property; an injunction settled the dispute in fact, some years before the final judgment on the merits. The Court considered that in this case the fair trial standards in Article 6 should apply to the injunction proceedings, and should do so in such cases so far as the circumstances allowed. The ruling in the Micallef case is in accordance with a right of effective access to a court and a purposive, human rights reading of the Convention.

3. Article 6(1): Guarantees in Criminal and Non-Criminal Cases

I. The Right of Access to a Court

a. The Golder case

One of the most creative steps taken by the European Court in its interpretation of any Article of the Convention has been its ruling in Golder v UK270 that Article 6(1) guarantees the right of access to a court. In that case, a convicted prisoner was refused permission by the Home Secretary to write to a solicitor with a view to instituting civil proceedings in libel against a prison officer. The Court held that the refusal raised an issue under Article 6(1) because that provision concerned not only the conduct of proceedings in court once they had been instituted, but also the right to institute them in the first place. Although there was no express mention of the right of access in Article 6, its protection could be inferred from the text.271 It was also a key feature of the concept of the ‘rule of law’, which, as the preamble to the Convention stated, was a part of the ‘common heritage’ of Council of Europe states. Moreover, any other interpretation would contradict a universally recognized principle of law and would allow a state to close its courts altogether without infringing the Convention.272 Despite cogent arguments to the contrary by the dissenting judges,273 the Court’s judgment has long been unquestioned and provides a secure foundation for the full guarantee of the ‘right to a court’.274 The right of access applies to such appeal proceedings as exist, as well as proceedings at first instance.275

p. 402The right was established and retains most of its significance in connection with the determination of ‘civil rights and obligations’. Cases may concern private litigation, as in the Golder case, or claims against the state, including claims arising out of administrative decisions by the state.276 Article 6 does not guarantee a right of access to a tribunal ‘with power to invalidate or override a law enacted by the legislature’. However, ‘subordinate legislation’ that ‘affects in substance the “civil rights” solely of … a person or group of persons in a similar situation’ is subject to it. Thus, in Post-Trade d.o.o. v Croatia,277 the applicant shareholder should have been able to have obtained judicial review complying with Article 6 of subordinate legislation cancelling its shareholdings in a private bank.

As to cases decided by an arbitration tribunal, in Motu and Pechstein v Switzerland,278 the Court stated that ‘if the law compels the parties to a civil dispute to go to arbitration instead of the courts, the arbitration tribunal must comply with Article 6’. In contrast, voluntary arbitration is not governed by Article 6: ‘By signing an arbitration clause, the parties voluntarily waive certain rights secured in the Convention’, including those in Article 6. However, the Court will examine the terms of the arbitration clause and the circumstances of the case to ensure that the waiver has been ‘established in a free, lawful and unequivocal manner’.

The right of access also applies to criminal cases, where it means that the accused is entitled to be tried on the charge against him in a court.279 The right of access does not include the right to bring a private criminal prosecution, since Article 6 is concerned only with a criminal charge against an accused.

The right of access means access in fact, as well as in law. It was for this reason that there was a breach of Article 6(1) in the Golder case. Whereas the applicant was able in law to institute libel proceedings in the High Court, the refusal to let him contact a solicitor impeded his access to the courts in fact. It did not matter that, strictly speaking, the applicant’s complaint was of an interference with his right of access to a solicitor, not the courts;280 that he might have made contact with his solicitor other than by correspondence; that after doing so he might never have instituted court proceedings at all; or that the applicant would have been able to have written to his solicitor before his claim became statute-barred after his release from prison. A partial or temporary hindrance may thus be a breach of the right of access to a court.

b. A right of effective access

Article 6(1) guarantees a right of ‘practical and effective’ access to the courts.281 This may entail legal assistance, as was established in Airey v Ireland.282 In that case, a wife who was indigent was refused legal aid to bring proceedings in the Irish High Court for an order of judicial separation. Given the particular nature of the proceedings,283 the Court held that, p. 403for the applicant’s access to court to be effective, she required legal representation, which for an indigent person meant free legal representation.284 The Court rejected the respondent government’s argument that the right of access to a court does not impose positive obligations upon states, particularly ones with considerable economic consequences, such as that to provide free legal aid.285

In the Airey case, the Court stressed that it was not deciding that the right of access provided a full right to legal aid in civil litigation comparable to that specifically provided by Article 6(3)(c) in criminal cases. Instead, ‘Article 6(1) may sometimes compel the state to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court.’286 This will certainly be the case where legal representation is required by national law.287 In other situations, the need for legal assistance must, as stated in Steel and Morris v UK,288 be determined by reference to the facts of each case and ‘will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent him or herself effectively’. Legal aid will not be required where there is no arguable case on the facts.289 Nor does the right of access require the provision of legal aid where the claim by the applicant involves an abuse of the law290 or of the legal aid system.291 Legal aid for legal persons in civil cases would not appear to be required.292

In Steel and Morris, McDonald’s, the fast-food chain, successfully brought an action for defamation against the two applicants for criticism of McDonald’s on environmental and social grounds in a leaflet that was part of a London Greenpeace campaign, and was awarded a total of £76,000 damages against them personally. The Court upheld the applicants’ claim that the UK had infringed Article 6(1) by refusing legal aid to the applicants, who were indigent. First, there was a lot ‘at stake’ financially for the applicants, who were of very modest means, with McDonald’s claiming £100,000 damages. Second, the facts and the law in the case were complicated, with voluminous documentation and over 300 days of court hearings, some 100 of which were on legal argument. Third, although the applicants, who represented themselves, were articulate and resourceful and had some pro bono help from lawyers, the ‘disparity between the respective levels of legal assistance enjoyed by the applicants and McDonald’s … could not have failed, in this exceptionally demanding case, to have given rise to unfairness’.293 The Steel and Morris case marks a departure from a series of earlier defamation cases, mostly brought by plaintiffs, not defendants, in which the Commission or the Court found that legal aid was not required.294 Key to the decision in the Steel and Morris case were the particularly strong and sympathetic facts.

p. 404Where the right of access does require legal assistance to ensure a fair hearing, Article 6 leaves states ‘a free choice of the means’ to be used towards this end: ‘a legal aid scheme’ is only one possibility.295 Thus an ex gratia offer of legal aid in the particular case may be sufficient,296 or proceedings may be simplified to avoid the need for legal assistance at all.297 In A v UK,298 the Court held that the availability of two hours’ free legal advice under the ‘green form’ scheme together with the possibility thereafter of engaging a solicitor on a conditional fee basis was sufficient to provide the applicant with effective access to a court in her defamation claim. Where the applicant qualifies for the assistance of a lawyer under the national system, the state has an obligation to appoint a legal aid lawyer who will actually take up the case. Thus, in Bertuzzi v France,299 the applicant was denied ‘effective access’ to a court where another legal aid lawyer was not appointed after three lawyers had refused to act because of their personal links with the lawyer whom the applicant was suing.

The need for access to the courts to be effective has also been in issue in a variety of contexts other than legal assistance. In Kutić v Croatia,300 a civil claim for damage to property was stayed by statute pending the enactment of legislation governing claims for damage resulting from terrorist acts. It was held that the right of access had been infringed because six years had passed without any such legislation being enacted. In several cases, violations have been found when the authorities have not acted with the ‘requisite diligence’ in informing litigants that proceedings in a case have commenced301 or of developments in proceedings affecting claimant rights302 so that they might attend a hearing or otherwise participate. In Blumberga v Latvia,303 the refusal to hear the applicant’s claim as not ‘properly submitted’ for lack of documentary evidence was ‘manifestly unwarranted’. Delays in administrative procedures that must be completed before a claim is brought may violate both the right of access and of trial within a reasonable time.304 In Lawyer Partners AS v Slovakia,305 there was a violation of the right of access when the plaintiffs were not permitted to register their claims electronically in circumstances in which when the documents presenting the claim amounted to 40 million pages and concerned many thousands of persons. There was also a violation when a tied vote in the Albanian Constitutional Court meant that there was no decision in the applicant’s case: in this situation, the applicant was deprived of the ‘essence’ of his right.306

p. 405In contrast, there was no violation of the right of access where the state authorities had done all in their power to recover the applicant’s case file from a part of Ukraine no longer under their control.307

The right of effective access also supposes that there is a ‘coherent system’ governing recourse to the courts that is sufficiently certain in its requirements for litigants to have ‘a clear, practical and effective opportunity’ to go to court.308 A number of cases in which uncertainty in the law or its application has led litigants to act in a way that has prejudiced their access to a court have been decided in their favour on this basis.309 At the same time, clear wording must not result in procedural requirements governing recourse to the courts being given a ‘particularly strict’ interpretation310 or application311 so as to prevent litigants making use of an available remedy. ‘Excess formalism’ can run counter to the requirement of securing a practical and effective right of access to a court.312

c. Restrictions upon the right of access

The right is not an absolute one. Restrictions may be imposed or implied as the right of access ‘by its very nature calls for regulation by the state, which regulation may vary in time and place according to the needs and resources of the community and of individuals’.313 As indicated in Zubac v Croatia,314 when imposing restrictions, the state is allowed a ‘certain margin of appreciation’ but any restriction must not be such that ‘the very essence of the right is impaired’. In addition, a restriction must have a ‘legitimate aim’ and comply with the principle of proportionality, so that there is ‘a reasonable relationship of proportionality between the means employed and the aim sought to be achieved’.315

This approach was applied in Nait-Liman v Switzerland.316 There the applicant Tunisian national brought a civil claim in the Swiss courts against the state of Tunisia and a government minister for compensation for acts of torture allegedly committed in Tunisia on the minister’s orders. Under Swiss law, torture victims could generally claim compensation for acts of torture (so there was an ‘arguable case’), but Swiss courts did not have jurisdiction in respect of torture committed abroad, except on a ‘forum of necessity’ basis, which did not apply in the applicant’s case.317 The Grand Chamber held that this restriction on p. 406jurisdiction did not violate the right of access to a court because it pursued legitimate aims and was not disproportionate to their attainment. The legitimate aims were the proper administration of justice (evidential and enforcement difficulties) and the effectiveness of domestic judicial decisions (risk of excessive workload if many cases ensued). As to proportionality, there was no obligation on states in customary international law or in treaties for a state to accept jurisdiction for torture compensation claims based on universal civil jurisdiction or on the concept of ‘forum of necessity’. With regard to universal civil jurisdiction, the Court stated that ‘[a]lthough states’ practice is evolving, the prevalence of universal civil jurisdiction is not yet sufficient’ to indicate the emergence of a custom.318 As with the Al-Adsani case,319 the outcome was disappointing as not advancing the cause of effective national remedies for victims of torture.

In contrast, in Baka v Hungary,320 there was a violation of the right of access when the premature termination of the applicant’s mandate as President of the Hungarian Supreme Court was not open to review by any court or other body exercising judicial powers. Noting ‘the growing importance which … the case-law of international courts and the practice of other international bodies … and are attaching to procedural fairness in cases involving the removal or dismissal of judges’, the Grand Chamber concluded that ‘the very essence of the applicant’s right of access to a court’ had been violated.

Restrictions upon access to the courts by certain categories of persons have been allowed or countenanced in principle if they are proportionate.321 Restrictions upon access by mentally incapacitated persons may be imposed, although, as with other kinds of restrictions on the right of access, they must have a legitimate aim and be proportionate. In Stanev v Bulgaria,322 the Grand Chamber noted that there was ‘a trend at European level’ to allow persons declared mentally incapable direct access in proceedings for the restoration of their legal capacity. In Nikolyan v Armenia,323 the Court confirmed that the right to ask a court to review a declaration of incapacity was ‘one of the fundamental procedural rights for the protection of those who had been partially or fully deprived of legal capacity’ so that such persons, including the applicant, ‘should in principle have direct access to the courts’ to this end. The Court also found other violations of Article 6(1) in that case as regards restrictions on the applicant’s right of access in divorce and eviction proceedings. In contrast, in RP and Others v UK,324 it was held that representation of the applicant, who had learning disabilities, by the Official Solicitor in childcare proceedings complied with Article 6, given that the applicant could challenge the decision to appoint the Official Solicitor.

The limitation of the right to bring proceedings to particular interested parties, to the exclusion of others, may be a breach of the right of access. Thus, a law that barred certain Greek monasteries from bringing legal proceedings in respect of their property, giving the right to the Greek Church instead, was a breach of the monasteries’ right of access, depriving them of the ‘very essence’ of the right.325 A fortiori, a judicial decision by which p. 407a church was deprived of its legal personality, which prevented it from bringing any civil proceedings, was a breach.326 In a different context, restrictions imposed on a managing director or shareholders who sought to question the liquidation or winding up of a company were held to be disproportionate.327 Likewise, a residential or other requirement imposed on a foreign company wishing to go to court may be such as to deprive it of the essence of the right.328

Restrictions on the bringing of claims by all litigants are acceptable if proportionate. Thus, requirements that an appeal be lodged by a lawyer329 or that a litigant pay a fee to bring a case330 or as security for costs,331 provided that the amount is reasonably proportionate, are permissible, as are a fine for an abusive appeal,332 a requirement to settle a civil claim against the state being taking it to court,333 a requirement of two years’ employment for entitlement to bring an unfair dismissal claim,334 a limitation of a constitutional right of appeal to important cases,335 and an ex turpi causa prohibition.336 However, a restriction on costs for a mentally disabled person who required a lawyer was disproportionate.337 Restrictions on the level of damages available in civil claims are permissible.338

In other lack of access cases, there was a breach of the right of access when the refusal of the applicant’s request to have his fixed penalty speeding fine referred to a court was based upon an error of law339 and where a foreign litigant without a lawyer was not given information as to his right of appeal.340 Lack of access to a court building for a disabled person may also be a factual restriction on the right of effective access.341 In an unusual case, the applicant was held to have been deprived of the ‘very essence’ of his right of access when a court declined, without giving any plausible reasons, to hear his claim on the ground that it should be heard in the courts of another country.342

Time limits for initiating either first instance or appeal proceedings are permissible in the interests of the administration of justice and legal certainty.343 They must be p. 408proportionate, with a margin of appreciation being justified because of the variation in practice in European states. In Stubbings v UK,344 a time limit for civil claims of childhood sexual abuse of six years from attaining the age of 18 was proportionate. Time limits for proceedings to determine paternity are permissible, but they must not place an ‘excessive burden’ on the applicant.345 A time limit which the applicant could not reasonably have been expected to meet will be a breach of the right of access,346 but clear and avoidable errors concerning time limits by a litigant will not.347 Reasonable requirements as to the statement of grounds for an appeal are not contrary to the right of access.348

Legislation with retroactive application that is designed to defeat a litigant’s claim in the courts is also in breach of the right of access, unless it can be justified as a proportionate limitation on ‘compelling’ public interest grounds.349 Most such cases have, however, been treated as involving a breach of the ‘principle of the rule of law and the notion of a fair trial enshrined in Article 6’, rather than as a breach of the right of access. The overturning of a court judgment that is res judicata has sometimes been considered as infringing the right of access,350 but has generally been regarded as being contrary to the principle of legal certainty within the guarantee of a right to a ‘fair hearing’ in Article 6(1).351

A procedural bar that takes the form of a defence that may be pleaded by the defendant is another kind of restriction upon the right of access to a court—one that has given rise to some important rulings. Whether the defence is consistent with the right of access turns upon whether it meets the Ashingdane requirements indicated earlier in this section. This approach was first adopted by the Court in Fayed v UK, as noted earlier,352 concerning an immunity defence in defamation proceedings.353

The same approach has been used to justify parliamentary, head of state, and state immunity and the immunity of international organizations from legal proceedings. As to parliamentary immunity, in A v UK,354 it was held that absolute immunity for Westminster Members of Parliament from a claim in defamation for their statements in proceedings in Parliament was not a breach of Article 6. It had the legitimate aims of securing the freedom of speech of MPs on matters of public interest—which is a matter of great importance in a democracy—and of maintaining the separation of powers of the legislature and the judiciary. Although absolute and extending to both civil and criminal proceedings, the immunity did not exceed the margin of appreciation: it could be justified as a p. 409proportionate restriction on the right of access to a court in order to achieve these aims, particularly as it extended only to statements in Parliament. Also relevant was the fact that the immunity was ‘consistent with and reflects generally recognised rules within signatory states, the Council of Europe and Members of the European Parliament’.355 An immunity that extends to statements made by parliamentarians outside Parliament is given closer scrutiny.356 Similarly, the grant of parliamentary immunity in a dispute over child custody was a violation, as it had no relation to parliamentary activity.357

As to head-of-state immunity, it is permissible to allow a head of state functional immunity from civil liability during their term of office to protect their freedom of speech provided that the immunity is ‘regulated and interpreted in a clear and restrictive manner’; as in the case of parliamentary immunity there must be a ‘fair balance between the competing interests’.358

As to state immunity, the immunity of states from civil proceedings in the courts of other states that is granted in accordance with international law has been held to be a proportionate restriction on the right of access to a court, with the legitimate aim of promoting comity and good relations among states. Thus, immunity from civil process in a tort claim for personal injury against a foreign state and one of its soldiers,359 a claim against the German Government for payment for forced labour during the Second World War,360 and a claim, in Fogarty v UK,361 concerning alleged discrimination in the recruitment of a local national for employment as a secretary in a foreign diplomatic mission were not in breach of the right of access.362 However, in Cudak v Lithuania,363 the Grand Chamber held that the failure to take jurisdiction in a civil claim by an embassy switchboard operator for dismissal was a disproportionate restriction on the right of access. This was because state immunity was, with exceptions, no longer recognized by international law as a permissible objection to civil jurisdiction in contract cases. A foreign state may waive its immunity from civil proceedings.364

The controversial case of Al-Adsani v UK365 concerned state immunity from civil proceedings in tort for acts amounting to torture. In that case, the applicant brought a claim p. 410in tort against the state of Kuwait in the English courts in respect of torture allegedly committed in Kuwait by state agents. However, the respondent state successfully pleaded state immunity, this being a defence available to states in English law, as required by long-established customary international law. The Grand Chamber, by just nine votes to eight, held that this restriction on the right of access was permissible. It held that a rule of state immunity in national civil proceedings had the legitimate aim of ‘complying with international law to promote comity and good relations between states through the respect of another state’s sovereignty’.366 As to proportionality, measures taken by a state to comply with its obligations under the international law of state immunity could not ‘in principle’ be regarded as disproportionate.367 As to these obligations, the Court noted that the prohibition of torture in customary international law had become a peremptory norm (ius cogens) and that there were judicial precedents suggesting that customary international law had been modified to the point where a claim of state immunity could not bar criminal proceedings against an individual for acts of torture. However, the Court could find no evidence of a similar development in the context of civil proceedings, so that a state retained its absolute immunity from civil suit in the courts of another state, at least, as on the facts of the case, for acts of torture committed outside the forum state. The dissenting judges mostly rejected the majority’s distinction between criminal and civil proceedings, arguing that the consequences of the prohibition of torture as ius cogens was that it was hierarchically superior in customary international law to the law of state immunity and should prevail over the latter generally, so as to remove all of its legal effects, in both civil and criminal cases.368 The argument of the dissenting judges is persuasive. As suggested by Judge Ferraro Bravo, the Court ‘had a golden opportunity to issue a clear and forceful condemnation of all acts of torture’.369 In Jones and Others v UK,370 the Al Adsani immunity was extended to state officials acting in their official capacity. In the Jones case, civil claims by the applicants against two prison officers, a deputy prison governor, and the Minister of the Interior in respect of acts of torture allegedly committed against them while in custody in Saudi Arabia were rejected by the English courts on grounds of state immunity. Applying Al Adsani, the Court Chamber held that there was no violation of the right of access in Article 6 in respect of the claims against the state itself. It also upheld the ruling of the English courts in respect of the claims against the individual state officials. The Court stated that, although there was ‘some emerging support’ for an exception, with state practice ‘in a state of flux’,371 there remained both a general rule of international law granting immunity from civil suit ratione materiae for state officials and, as yet, no exception in cases of torture.

Immunity from civil proceedings for international organizations, in accordance with international law rules concerning their immunity, may also be permissible. In Waite and Kennedy v Germany,372 the existence of an ‘alternative means of legal process’, or remedy, provided by the European Space Agency Convention was a ‘material factor’ in the decision p. 411that immunity from civil claims brought against the Agency under the respondent state’s labour law was proportionate to the legitimate aim of ensuring the proper functioning of an international organization free from interference by individual governments. However, the absence of an alternative remedy was not decisive in Stichting Mothers of Srebrenica and Others v Netherlands,373 although here too immunity for an international organization was allowed. In this case, immunity was granted to the UN by the respondent state’s courts in respect of civil claims brought for the failure to prevent genocide and other serious offences in the Srebrenica massacre. The Court distinguished the Waite and Kennedy line of cases on the basis that whereas they involved disputes between the organizations and their members of staff, the Stichting Mothers case concerned a dispute arising out of a UN operation authorized by the Security Council under Chapter 7 of the UN Charter. ‘To bring such operations within the scope of domestic jurisdiction would be to allow individual states, through their courts, to interfere with the fulfilment’ of the key mission of the UN to secure international peace and security.

A different kind of immunity, in the form of an executive certificate that was conclusive of an issue before the courts, was the subject of Tinnelly and McElduff v UK.374 In that case, a right of action for damages for discrimination in Northern Ireland did not extend to acts done to protect national security. Whereas this by itself did not present a problem, the Court held that the rule by which an executive certificate to the effect that the act was done for that purpose was conclusive was a disproportionate limitation upon the right of access; it would have been possible, as the UK had done in other contexts, to have made special arrangements to provide for an independent judicial, rather than an executive, determination of the facts.

The distinction between the situation where there is no ‘legal basis’ under national law and that where there is a procedural limitation by way of a defence that may be invoked is sometimes difficult to draw.375 In Z v UK,376 the applicant children, who brought a civil claim for damages against a local authority for failing to prevent their being abused by their parents, were denied the chance to plead their case on the merits when their claim was struck out by the courts. This followed proceedings in which it was held, deciding a new point of law, that the local authority owed no duty of care in negligence and had no liability for breach of statutory duty in respect of their statutory childcare duties. The Court held that the inability to sue the local authority was not an immunity under the applicable law, in which case questions of a legitimate aim and proportionality would have been relevant, but a case of the absence of a right within the bounds of the substantive law, so that Article 6 did not apply at all. In its judgment in the Z case, the Court took the opportunity to signal a reversal of its reasoning in Osman v UK.377 Whereas in Osman the Court had ruled that the absolute immunity in English law of police officers from civil liability in negligence was a disproportionate limitation upon the right of access to a court, in Z v UK, the Court stated that, in the light of clarification later made by the English judiciary,378 it now understood this exclusion as deriving from the extent of the duty of care in the substantive p. 412law of negligence, not as going to an immunity. As a result, it can be taken that the Court’s ruling in Osman that the police immunity from liability was in breach of the right of access as being disproportionate because of its absolute nature is no longer good law; instead, Article 6 simply did not apply.

As well as in defence cases, the Court has applied the Ashingdane approach where the national courts’ jurisdiction has been ousted by treaty. In Prince Hans-Adam II of Liechtenstein v Germany,379 the applicant brought a claim in Germany concerning the expropriation by the Czechoslovak authorities of a painting to which he claimed title that was kept in Czechoslovakia, but which was temporarily in Germany for exhibition. The German courts held that, under the Settlement Convention, which was binding upon Germany and the Western Allies, they had no jurisdiction to hear a claim concerning ‘German external assets’. Applying Ashingdane, the European Court, unanimously, found against the applicant on the basis that the restriction on the German courts’ jurisdiction had a legitimate aim—the realization of German sovereignty and unity—and was not disproportionate to that end, given that the natural and most likely forum for such a claim was where the painting was kept, and that a claim had earlier been brought unsuccessfully in the Czechoslovak courts.

The right of access may be restricted in criminal, as well as non-criminal cases. Thus a decision not to prosecute or to discontinue proceedings may be taken without infringing Article 6.380 A practice whereby there is no hearing as to guilt or innocence (only as to the sentence) if an accused pleads guilty at the beginning of the trial is consistent with Article 6(1) provided that adequate safeguards exist to prevent abuse.381 It is also permissible to issue a penal order by which a person is convicted and sentenced in respect of a minor criminal offence without any court hearing provided that the person has sufficient opportunity to request a hearing.382 The immunity of an investigating judge from criminal prosecution has also been held to be justified.383 However, a requirement that a convicted person who appeals on a point of law must surrender to custody pending a decision on the appeal is a disproportionate restriction that takes away the very essence of the right of access to a court on appeal.384 A violation also occurs where a civil party whose claim is joined to criminal proceedings is unable to pursue the claim when the proceedings become time-barred because of the prosecution’s delay.385

d. Waiver of the right of access

A person may waive his right of access in civil and criminal cases.386 In Deweer v Belgium,387 the Court stated that a claim of waiver should be subjected to ‘particularly careful review’. In that case, a butcher chose to pay an out-of-court fine for an ‘over-pricing’ offence rather than wait for trial. A waiver was found not to have occurred because his decision to waive his right to a trial was subject to constraint. In particular, the accused was faced with the p. 413provisional closure of his shop pending prosecution, with consequential economic loss, if he elected to go for trial. In Kart v Turkey,388 the National Assembly’s refusal to lift the applicant Member of Parliament’s immunity from criminal prosecution was a justifiable limitation on the applicant’s freedom to waive his right of access in order to protect the Assembly’s integrity.

e. Relationship with Article 13

Finally, the right of access to a court overlaps with the right to an effective national remedy in respect of a breach of a Convention right that is guaranteed by Article 13.389 The overlap exists insofar as the Convention right is also a ‘civil right’ in the sense of Article 6(1). The right of access provides a stricter guarantee than Article 13 in that it requires a remedy before a court.390

II. The Right to a Fair Hearing

In contrast with the other guarantees in Article 6(1), the right to a ‘fair hearing’ has an open-ended, residual quality. It provides an opportunity for adding particular rights not listed in Article 6 that are considered essential to a ‘fair hearing’—an opportunity which the Court has taken fully.391 It has also allowed the Court in cases not involving a violation of a particular right to find a violation of the right to a ‘fair hearing’ on a proceedings ‘taken as a whole’ basis. For example, in Barberà, Messegué and Jabardo v Spain,392 involving the prosecution of alleged members of a Catalan organization for terrorist offences, the Court identified a number of features of the hearing that cumulatively led it to conclude that there had not been a ‘fair hearing’. The Court referred to the fact that the accused had been driven over 300 miles to the court the night before the trial, the unexpected changes in the court’s membership, the brevity of the trial, and, above all, the failure to adduce and discuss important evidence orally in the accused’s presence as considerations that, ‘taken as a whole’, rendered the proceedings unfair contrary to Article 6(1).

The relationship between Article 6(1) and Article 6(2) and (3) in criminal cases was explained by the Commission as follows in Nielsen v Denmark:393

Paragraph 3 of the Article enumerates certain specific rights which constitute essential elements of that general notion [of a ‘fair trial’] and paragraph 2 may be considered to add another element. The words ‘minimum rights’, however, clearly indicate that the six rights enumerated in paragraph 3 are not exhaustive, and that a trial may not conform to the general standard of a ‘fair trial’, even if the minimum rights guaranteed by paragraph 3—and also the rights set forth in paragraph 2—have been respected.

In line with this explanation, the Court has in some cases treated non-compliance with the rights in Article 6(2) and (3) as violations of separate Convention rights distinct from the general right to a ‘fair hearing’ guarantee in Article 6(1).394 Its more common practice is to p. 414take decisions on the basis that the rights in Article 6(2) and (3) are elements of the general right in Article 6(1). For example, in Simeonovi v Bulgaria,395 the Grand Chamber stated that ‘Article 6 § 3 (c) [right to legal assistance] does not therefore secure an autonomous right but must be read and interpreted in the light of the broader requirement of fairness of criminal proceedings, considered as a whole, as guaranteed by Article 6 § 1 of the Convention. In particular, compliance with the requirements of a fair trial must be examined in each case with regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident.’

In accordance with this second approach, where a case falls within one (or more) of the specific guarantees in Article 6(2) or (3), the Court considers whether the respondent state has complied with Article 6(2) or (3) in conjunction with Article 6(1),396 or just under Article 6(1)397 or Article 6.398 Increasingly, the Court has taken a step further by adopting an approach by which, even though it finds that a paragraph of Article 6(3) has not been complied with, it holds that no violation of the Convention has occurred unless the non-compliance has caused the proceedings ‘as a whole’ to be unfair. For example, in the Simeonovi case399 there was no violation of Article 6(1) and Article 6(3)(c), despite the absence of a lawyer in the first three days of questioning in police custody contrary to Article 6(3)(c), because ‘the overall fairness of the criminal proceedings against the applicant had not been irretrievably prejudiced by the absence of legal assistance’. This last approach has been much criticized.400 In his dissenting opinion in Murtazaliveya v Russia,401 Judge Alberquerque described it as giving ‘a blank cheque for the domestic courts to do whatever they want with Article 6 § 3 rights’.

The right to a ‘fair hearing’ in Article 6(1) applies to civil as well as criminal proceedings, but ‘the contracting states have a greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases’.402 Thus, although certain of the guarantees listed in Article 6(3) (eg the right to cross-examine witnesses) are a part of the a ‘fair hearing’ guarantee in Article 6(1) in civil as well as criminal cases, they may not apply with the same rigour or in precisely the same way in civil proceedings as they do in criminal ones.403 The same is true of some of the rights that flow exclusively from Article 6(1), such as the right to be present at the hearing.404

a.p. 415 A hearing in one’s presence

Although not expressly provided for in Article 6, the right to be present at an oral hearing in one’s case405 is a part of the right to a ‘fair hearing’ in Article 6(1) in criminal cases. As stated in Colozza v Italy,406 ‘it is difficult to see how an accused could exercise their rights in Article 6(3)(c), (d), and (e) without being present at the hearing’. The right to be present is also implicit in the accused’s rights in Article 6(1) to ‘participate effectively’ in the hearing407 and to adversarial proceedings.408 In addition, the accused’s presence is justified by their interest in witnessing and monitoring proceedings that are of great importance to them. There is also a public interest in an accused attending the trial to give evidence so that their evidence may be checked in person against that of others.409 However, the right to be present at a hearing may not protected in a prosecution for a non-‘hard core’ criminal offence. In Kammerer v Austria,410 there was no violation of Article 6(1) when an accused was convicted of such an offence for not having his car inspected after a hearing which he had not been able to attend.

As to civil proceedings, Article 6 does not guarantee a litigant’s right to be present before a civil court ‘but rather a more general right to present one’s case effectively before the court and to enjoy equality of arms with the opposing side’.411 However, the Court has identified certain kinds of civil cases in which a litigant may be entitled under Article 6 to be present at the hearing. These include cases where the ‘personal character and manner of life’ of the person concerned is ‘directly relevant’ to the decision,412 where the decision involves an assessment of the person’s ‘conduct’,413 or of the legal capacity of a mentally incapacitated person.414 In a civil case alleging ill-treatment by the police, where the prisoner’s participation was ‘virtually the only way to ensure adversarial proceedings’, the national court should have ordered that the state ensure his attendance at the hearing.415 In contrast, in Kozlov v Russia,416 there was no violation of Article 6(1) when the applicant was unable to attend hearings in civil proceedings concerning a housing dispute because he was in provisional detention: his presence and participation were not necessary to ensure ‘equality of arms’. In Yevdokimov and Others v Russia,417 the Court held that a practice of automatically denying all litigants in civil cases attendance at their hearing violated Article 6(1): ‘the Russian courts had failed, firstly, to carry out a proper assessment of the nature of the civil claims with a view to deciding whether the applicants’ presence was necessary, and secondly, to consider appropriate procedural arrangements enabling the applicants to be heard.’

As to the use of video links, in Sakhnovskiy v Russia,418 the Grand Chamber stated in a criminal case stated that a video link ‘is not, as such, incompatible with the requirements p. 416of a fair and public hearing, but it must be ensured that the detainee is able to follow the proceedings, to see the persons present and hear what is being said, but also be seen and heard by the other parties, the judge and witnesses, without technical impediments’. The same approach was followed in Jallow v Norway,419 in which the video link hearing in a civil parental responsibility case of a parent abroad who had been refused an entry visa was held not to have placed him at a ‘substantial disadvantage’.

A party to a criminal or non-criminal case may waive his right to be present at the hearing, provided that the established requirements for waiver are met.420 Waiver will depend upon the applicant having knowledge of the hearing. In Sejdovic v Italy,421 the Court indicated that, while appropriate official notice is normally required, it ‘could not rule out the possibility that certain established facts might sufficiently provide an unequivocal indication that the accused is aware’ of the criminal proceedings against him and does not intend to appear at them. However, the mere fact that, as in the Sejdovic case, the accused has left his place of residence and is untraceable is not sufficient to show that he knows of the hearing. Waiver need not be expressly indicated. It may be inferred from conduct, for example by an accused not attending the hearing, having knowledge of it.422 However, notice must make clear what the hearing concerns,423 be given in good time to allow the accused to attend,424 and in a language that he understands.425 ‘Particular diligence’ is required where notice of the hearing is given via the applicant’s lawyer.426 Refusal to participate in a hearing other than in the accused’s own language is not a waiver.427 Non-attendance by itself is not a waiver; a court must not proceed to a trial in absentia without making appropriate inquiries to establish waiver.428 A waiver is not ‘unequivocally’ established where an accused could not reasonably have foreseen the consequences of his failure to attend. Thus, there was no waiver in Jones v UK,429 when the applicant’s trial commenced in his absence when the applicant, having been given bail, did not surrender on the date set for the trial. There was held not to be a waiver because at the time it was not clear in English law that a trial could proceed to a conclusion in the accused’s absence and without his being legally represented, and the seemingly invariable practice was to adjourn the proceedings until the accused could be brought to court.

As well as in cases of waiver, trial in absentia is permitted in criminal cases without infringing Article 6 in two other situations. The first is where the state has acted diligently, but unsuccessfully, to give an accused notice of the hearing. In Colozza v Italy,430 the Court stated that this is because the ‘impossibility of holding a trial by default may paralyse the conduct of criminal proceedings, in that it may lead, for example, to the dispersal of evidence, expiry of the time-limit for prosecution or a miscarriage of justice’. On the facts of the Colozza case, the Court found a breach of Article 6(1) because the applicant had changed his address and the authorities had not been diligent in the steps they had p. 417taken to locate the applicant’s new address and that trial in absentia was a disproportionate penalty for failure to report a change of address. The onus was upon the state to show diligence, not upon the accused to show that he was ‘not seeking to evade justice or that his absence was due to force majeure’.431

The second situation is where the accused, having knowledge of the trial, intentionally absents himself from it with a view to escaping trial.432 In view of the ‘prominent place of the right to a fair trial in a democratic society’, the state must have good reason to conduct a trial in absentia on this basis.433 Such cases differ from waiver in that there is no express or implied acceptance that the trial may proceed in the accused’s absence. As with waiver, knowledge of the trial normally means official knowledge, except that it may be inferred from conduct, such as evading an attempted arrest.434

In a case in which a trial is permitted in absentia under the Colozza rule, the accused must be able to obtain ‘a fresh determination of the merits of the charge, in respect of both law and fact’,435 should they later learn of the proceedings. A re-hearing adequately overcomes the ‘fair’ trial problems that may result from the accused’s absence at the original trial and failure to provide one would be a denial of justice.436 The requirement of a re-hearing may be satisfied by a trial court hearing, or by an appeal that provides for a sufficient consideration of the merits of the case.437 The requirement of a re-hearing applies to civil as well as criminal cases.438

There is, however, no right to a retrial in a case in which under the Convention a trial is permitted in absentia, where it is established that the right to be present at the trial was waived, or in which the applicant intended to escape justice, by absconding or otherwise.439 In addition to the cases mentioned in which a trial may commence and be fully conducted in the absence of the accused, a trial that has already commenced may continue in the absence of the accused in the interests of the administration of justice in some cases of illness440 or obstructive behaviour.441 Obviously, an accused who seeks to delay proceedings by claiming unsubstantiated illness may be tried in his absence.442 Similarly, an accused or other litigant who behaves in the courtroom in such a way as to seriously obstruct proceedings may be excluded from the court, at least temporarily.443

p. 418Although Article 6 applies to such appeal proceedings as a state chooses to provide in criminal and civil cases, there are limits to the right to be present at an oral hearing on appeal. In some cases, written proceedings will suffice, so that the question of the right to be present does not arise. The cases in which an oral hearing has been required by the Court have mostly been ones in which the justification for the hearing has been the need for the appellate court to hear the appellant as a witness, in which situations his right to be present is implied. These cases are considered later in this chapter under the right to an oral hearing.444

b. The right to participate effectively in the trial

The right to participate effectively in proceedings, which overlaps with the right to be present at the hearing, applies to civil and, especially, criminal cases. In Stanford v UK,445 the Court held that Article 6 guarantees not only the right of an accused to be present at the hearing, but also the right to hear and follow the proceedings and generally to participate effectively in them. In the Stanford case, the applicant claimed that he was unable to hear the proceedings because of a combination of his hearing difficulties and the acoustics in the courtroom. While the right to participate effectively meant, inter alia, that the state must provide a courtroom in which the accused is able to hear and follow the proceedings, the Court found no breach of Article 6 on the facts.

The right to participate effectively was infringed in V v UK.446 The applicant was one of two boys tried at the age of 11 years for the murder of a two-year-old boy in a case that had attracted huge publicity in the national media. The trial took place in public over three weeks in a packed Crown Court. Although some special measures were taken in view of the accused’s young age,447 nevertheless ‘the formality and ritual of the Crown Court must at times have seemed incomprehensible and intimidating for a child of 11’; and there was evidence that the raising of the dock in which the accused was placed, in order for him to see the proceedings, increased his discomfort by exposing him to the press and the public. There was also psychiatric evidence to suggest that the accused had been terrified and unable to pay attention to the proceedings. The Court held that in these circumstances the applicant’s right to participate effectively in the hearing had not been respected; although his lawyers sat close by him, he would have been in no state to consult with them or generally to follow what was going on.

It may be a breach of the right to effective participation for an accused to be placed in a ‘glass cabin’ during the hearing if this prevents their communication freely and confidentially with their lawyer and otherwise to participate effectively in the proceedings.448 p. 419The right to effective participation also includes the accused’s right to make and retain notes on the proceedings to facilitate the conduct of their defence.449

c. Equality of arms

The right to a fair hearing supposes compliance with the principle of equality of arms.450 This principle,451 which applies to both civil and criminal proceedings, ‘requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent’.452 When deciding whether it has been complied with, ‘appearances’ are relevant, as is the seriousness of what is at stake for the applicant.453 In criminal cases, the principle of equality of arms in Article 6(1) overlaps with the specific guarantees in Article 6(3).454 It has, however, a wider scope than these guarantees, applying to all aspects of the proceedings.455 In Bulut v Austria,456 it was held that non-compliance with the principle does not depend upon actual prejudice on the facts: the lack of equal treatment is in itself is a breach of the right to a fair trial. However, in Diriöz v Turkey,457 the prosecutor’s privileged location in the courtroom was not a breach of equality of arms as it did not adversely affect the accused’s defence.

The principle has been applied most strikingly in cases from civil law jurisdictions in which the role of the avocat général or similar officer in final appellate court proceedings has been called into question. The key case was Borgers v Belgium.458 There the Court held that the lack of equal standing in criminal proceedings before the Court of Cassation between the avocat général within the Belgian procureur général ’s department and the appellant was in breach of equality of arms. In particular, the avocat général was entitled to state his opinion at the hearing as to whether the appellant’s appeal should be allowed459 and then retire with the court and take part (without a vote) in its discussion of the appeal. The appellant did not have prior notice of the avocat général ’s opinion and could neither reply to it nor retire with the judges. The decision reversed the European Court’s earlier ruling to the contrary in the much-criticized case of Delcourt v Belgium,460 and invalidated a century-old Belgian practice. In its reasoning, the Court accepted that the avocat général was not part of the prosecution and that his function was to give independent and impartial advice to the Court of Cassation on the legal issues raised in the case and on the consistency of its case law. However, the European Court emphasized the importance of ‘appearances’ and ‘the increased sensitivity of the public to the fair administration of p. 420justice’.461 The emphasis upon ‘appearances’ follows the use of the same idea in the Court’s jurisprudence on the requirement of an ‘independent and impartial’ tribunal. In a series of similar cases since Borgers, concerning both Belgium and other civil law jurisdictions and in both civil and criminal cases, the Strasbourg Court has also found breaches of Article 6(1), by reference to equality of arms, the right to adversarial proceedings, or the right to a fair hearing.462

In criminal cases, a number of other particular ‘equality of arms’ rulings have been made requiring a ‘fair balance’ between the parties. Thus, the failure to lay down rules of criminal procedure by legislation may be a breach of equality of arms, since their purpose is ‘to protect the defendant against any abuse of authority and it is therefore the defence which is most likely to suffer from omissions and lack of clarity in such rules’.463 In Moiseyev v Russia,464 there was a lack of equality of arms because the prosecution: (i) had control over the detained applicant’s access to his lawyer, each visit requiring prosecution permission; and (ii) saw all documents passing between them. Other breaches have involved the failure by the prosecution to disclose all ‘material evidence’ to the defence,465 limitations upon an accused’s access to his case file or other documents on public interest grounds,466 refusal to admit written defence testimony,467 and discrimination in the calling of prosecution and defence witnesses.468 In Abdullayev v Azerbaijan,469 the Murtazaliyeva test for the calling of defence witnesses was applied under the heading of equality of arms to the admission of a video recording of a fight when the witnesses who had given evidence of the incident were witnesses for the prosecution. Requiring the lawyer for the accused, but not the prosecution, to wait many hours before being heard by the court was a breach of equality of arms.470

Expert evidence is subject to equality of arms. In a criminal case, an expert witness commissioned by the accused must be accorded equal treatment with a court-appointed expert.471 Although the fact that an expert is appointed by the court may raise concerns as to their neutrality, what is decisive is not the appointment by the court but how the expert performs their role, the response of the court to the expert’s evidence, and the possibilities for challenge by the other side.472

With regard to civil cases, there is an obvious breach of equality of arms if one party may attend the hearing when the other may not.473 Equality of arms also requires that p. 421a party to civil proceedings be informed of, and hence be able to challenge, the reasons for an administrative decision;474 allowed equal access to documents and other evidence and facilities;475 permitted to have material evidence in support of their case admitted in court;476 and treated equally when calling witnesses.477 As in criminal cases, a court-appointed expert in civil proceedings must be neutral,478 and litigants must be allowed access to documents and other facilities on equal terms.479 Unequal time limits for the bringing of proceedings may also be a breach of equality of arms,480 as may rules as to costs that unduly favour the other party.481 Finally, the Court has relied upon the principle of equality of arms in some cases in which a state has enacted legislation with retroactive effect that is intended to influence the outcome of pending civil litigation.482 In other such cases, the Court has treated the legislation as falling foul of a separate Article 6(1) ‘fair hearing’ requirement, distinct from equality of arms.

d. The right to adversarial proceedings

The right to adversarial proceedings ‘means in principle the opportunity for the parties to a civil or criminal trial to have knowledge of and comment on all evidence adduced or observations filed with a view to influencing the Court’s decision’.483 While the facts of a case may give rise to issues under both the right to adversarial proceedings and the right to equality of arms, the two rights differ in that whereas the latter is satisfied if the parties are treated equally, the former requires access to all relevant material, whether the other party has access to it or not.484 In criminal cases, the right to adversarial proceedings runs parallel with certain of the specific guarantees in Article 6(3), particularly those in Article 6(3)(b) and (d) to adequate facilities and to call and cross-examine witnesses respectively.485 It is not necessary to show actual prejudice: the essence of the right is that the parties should be in a position to decide whether they wish to respond to the material.486

It is for the state to ensure in its law and practice that the other party is ‘aware that observations have been filed and will have a real opportunity to comment on them’.487 p. 422In criminal cases, ‘the results of investigations carried out throughout the proceedings’ must be available to the defence488 and the prosecution must disclose ‘all material evidence in their possession for or against the accused’, whether or not they use it in the proceedings.489 Adequate procedures must be in place to allow an accused to assess the relevance of evidence obtained by secret surveillance.490

The Court applied both the rights to adversarial proceedings and to equality of arms in a group of UK criminal cases491 in which material in the possession of the prosecution was not made available to the defence on public interest immunity grounds. In these cases, the Court established that whereas, as indicated earlier, the prosecution must disclose ‘all material evidence’ to the defence, this is not an absolute requirement. It is permissible to withhold evidence if this is ‘strictly necessary’ ‘to preserve the fundamental rights of another individual or to safeguard an important public interest’: for example, non-disclosure might be justified to protect informers, police undercover activities, or national security.492 Where public interest immunity is claimed, the Strasbourg Court’s role is not to assess the necessity for withholding the evidence, which is the function of the national courts, but to ensure that the procedure followed when the non-disclosure decision is taken incorporates adequate safeguards to protect the interests of the accused. In Jasper v UK,493 the Grand Chamber held that the public interest immunity procedure in English law complied with Article 6(1) as it was applied on the facts of the case. Under that procedure, the decision about non-disclosure on public interest immunity grounds was taken by the trial judge after examining the non-disclosed evidence. The defence was not shown the evidence or even told of the kind of evidence it was but was permitted to outline its case to the judge, who was competent to order disclosure of evidence relevant to it. In ruling, by a bare majority of nine votes to eight, that the judge’s decision authorizing non-disclosure was not a breach of the rights to adversarial proceedings or equality of arms, the Court was strongly influenced by the fact that the non-disclosed evidence formed no part of the prosecution case and was not put to the jury. In contrast, in Edwards and Lewis v UK,494 the Grand Chamber unanimously held that the same English law procedure did not comply with the same rights on the facts of the case. In particular, the facts differed from those in Jasper in that the non-disclosed material in Edwards and Lewis was directly relevant to the trial, for the reason that it related to the applicants’ possible entrapment by the police into committing the alleged offence which, if established, would have led to the discontinuance p. 423of the prosecution. In these circumstances, a procedure that did not permit the defence to have access to the material, and an opportunity then to argue its case for entrapment with full information, was a breach of Article 6(1).495

The same procedural approach was adopted in the civil case of Regner v Czech Republic.496 The applicant sought judicial review of the withdrawal of his security clearance, which was required for his civil service employment. Neither he nor his lawyer was allowed access to the intelligence service documents underlying the withdrawal or informed of the reasons for it. The Grand Chamber held, by ten votes to seven, that these restrictions on the applicant’s rights to adversarial proceedings and equality of arms were ‘offset in such a manner that the fair balance between the parties was not affected to such an extent as to impair the very essence of the applicant’s right to a fair trial’. In particular, the competent courts had unlimited access to the documents on which the withdrawal decision was based and could examine and assess the reasons for it. Although holding that Article 6(1) had not been violated, the Grand Chamber commented that ‘it would have been desirable … to have explained, if only summarily, the extent of the review … carried out and the accusations against the applicant’.497

A breach of the right to adversarial proceedings has been found in various other contexts.498 For example, in Kamasinski v Austria,499 there was a breach of Article 6(1) when the Supreme Court obtained, and relied upon, information obtained over the telephone from the presiding judge at the trial; this was without the accused being informed or having an opportunity to comment on the judge’s response.500 In McMichael v UK,501 there was a breach where social reports on children in care, relevant to a dispute between their parents and the local authority, were not revealed to the parents. In Mantovanelli v France,502 there was a breach when the applicants were not permitted to participate in the procedure for obtaining a medical expert’s report.

e. Rules of evidence

The right to a fair hearing in Article 6(1) does not require that any particular rules of evidence are followed in national courts in either criminal or ‘civil rights and obligations’ cases; it is, in principle, for each state to lay down its own rules.503 Such an approach is inevitable, given the wide variations in the rules of evidence in different European legal systems, with, for example, common law systems controlling the admissibility of evidence much more tightly than civil law ones. However, the Strasbourg Court has set certain parameters within which a state must operate.

p. 424Admissibility of evidence

In Schenk v Switzerland,504 the Court stated that Article 6 ‘does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law’. Accordingly, it ‘is not the role of the Court to determine, as a matter of principle, whether particular types of evidence … may be admissible … The question for the Court instead is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair.’505 The above approach has been developed in criminal cases. However, the Court may ‘draw inspiration’ from it in civil cases, though bearing in mind that ‘fair trial’ guarantees ‘are not necessarily the same in criminal law and civil law proceedings’ and that states have ‘greater latitude’ under Article 6 when dealing with civil cases.506

Evidence may be admitted even if illegally obtained if this does not render the proceedings as a whole unfair. In the Schenk case, there was no breach of Article 6(1) when a tape recording of a conversation between the applicant and another person, P, that was obtained in breach of Swiss law and that incriminated the applicant, was admitted in evidence. This was because the proceedings as a whole were not unfair, for the following reasons. First, the rights of the defence had not been disregarded. In particular, the defence had the opportunity to challenge both the authenticity of the recording and its admission as evidence and to examine both P and the police officer who had instigated the recording. Second, the recording was not the only evidence on which the conviction was based.

The Schenk case was applied in Khan v UK,507 in which again no breach of Article 6 was found. There, a conversation between the applicant and X on the latter’s premises had been recorded by an electronic listening device secretly installed on the premises by the police. The recording was admitted in evidence at the applicant’s trial for a drug trafficking offence. In contrast to the Schenk case, the installation and use of the device were not contrary to national criminal law, although it was obtained in breach of Article 8 of the Convention.508 The recording was the only evidence on which the applicant’s conviction was based, but this consideration was discounted by the Court because the recording was both ‘very strong evidence’ and undoubtedly reliable and in Schenk the recording had in fact also been important, possibly decisive, evidence. Moreover, the applicant had, as in the Schenk case, been able to challenge the authenticity and admissibility of the recording and the national courts at three levels of jurisdiction had rejected claims that it should be excluded as rendering the proceedings unfair.

As emerges from these cases, whether the use of evidence obtained in breach of Article 8 renders a trial unfair in breach of Article 6 depends upon the circumstances, including whether the rights of the defence have been respected and the strength of the evidence. In contrast, the admission of evidence obtained by torture contrary to Article 3 automatically makes the trial as a whole unfair contrary to Article 6: ‘incriminating evidence—whether in the form of a confession or real evidence—obtained as a result of acts of violence or brutality or other forms of treatment which can be characterized as torture—should never be relied on as proof of the victim’s guilt, irrespective of its probative value’.509 The same is p. 425true of confessions obtained by inhuman or degrading treatment contrary to Article 3.510 However, in Gäfgen v Germany, the Grand Chamber held, by 11 votes to six, that the admission of ‘real evidence’ obtained by inhuman or degrading treatment contrary to Article 3 is only in breach of the right to a fair trial in Article 6 ‘if it has been shown that the breach of Article 3 had a bearing on the outcome of the proceedings against the defendant, that is, had an impact on his or her conviction or sentence’. This was not so in the Gäfgen case. In that case, having been threatened by the police with force involving ‘intolerable pain’—which threat amounted to inhuman treatment but not torture—if he did not reveal the whereabouts of an abducted child, the applicant revealed the location, as a result of which the child’s body and other real evidence (including tyre tracks and clothes) were found and admitted in court. However, the Grand Chamber noted that the evidence that was ‘decisive’ for the applicant’s conviction was the confession made by him at his trial, together with other ‘untainted’ corroborative evidence. The ‘real evidence’ obtained by inhuman treatment in violation of Article 3 was relied on at the trial only to test the veracity of the confession, not to prove guilt. In their joint opinion, the six dissenting judges argued that the admission of all evidence, both statements and real evidence, obtained in violation of Article 3 should always be regarded as in breach of Article 6. In their view, which is persuasive, the majority had failed to treat the proceedings as an ‘organic whole’, so that they had not taken into account the fact that the applicant’s confession was influenced by the admission of the real evidence obtained in breach of Article 3, which he would have realized had substantially reduced his chances of mounting a successful defence. The dissenting judges also criticized the Court for introducing a distinction in the consequences of different types of conduct prohibited by Article 3 which was not envisaged in the Convention text. A ‘strict application’ of the exclusionary rule would also deprive state agents of any incentive to engage in inhuman treatment, which, like torture, was the subject of an absolute guarantee. Other important considerations mentioned by the dissenting judges were the need to maintain the rule of law and the integrity of the judicial process. Another factor is that the borderline between torture and the lesser forms of ill-treatment proscribed by Article 3 is not always easy to determine.

The rules on the admission of evidence obtained in breach of Article 3 has been taken further in the context of extradition cases. In Othman (Abu Qatada) v UK,511 in which the applicant was to be deported by the respondent state to Jordan to face a retrial on serious criminal charges, the Court held, first, that in the application of the rules outlined earlier (above, p 379) the standard of proof was whether there was a ‘real risk’ that the evidence that might be admitted at trial had been obtained by torture, not, as claimed by the respondent state, the higher standard of ‘the balance of probabilities’ or ‘beyond reasonable doubt’. Second, the Court held that the rules applied to the admissibility of evidence obtained from third parties, as well as from the accused.512 These Abu Qatada rulings were applied in El Haski v Belgium in the reverse situation of the admissibility in a criminal trial in the respondent state of statements allegedly obtained in a third state in breach of Article 3. In the El Haski situation, if there is a ‘real risk’ that the statements were obtained in breach of Article 3, they must not be admitted in evidence if the third state ‘does not offer meaningful guarantees’ that the allegations have been subjected to ‘an independent, impartial and serious examination’.513

p. 426In other cases involving allegations that evidence has been obtained by coercion or oppression by the authorities in the respondent state in which there has been no finding of a breach of Article 3, the Strasbourg Court has made it clear that it will not intervene where appropriate safeguards are in place in that state.514 These include the presence of the accused’s lawyer during police questioning or, in the absence of this, satisfactory procedures followed by the court that ensure that a statement has been freely made.515

Certain other national rules as to admissibility of evidence that do not concern coercion or oppression or breaches of Article 3 have been found to be acceptable. The admission of evidence by an accomplice or other accused who has been promised immunity is not in itself contrary to Article 6.516 Consistently with the practice in a number of European criminal justice systems, it has also been held that it is not in breach of Article 6 for the court to be informed of the accused’s criminal record during the trial,517 or for a conviction to be founded solely on circumstantial evidence.518

Assessment of evidence

Just as the Strasbourg Court regards the rules as to the admissibility of evidence as primarily a matter for national decision, so it will not generally review the assessment of evidence by a national court.519 It will only do so where the national court has drawn ‘arbitrary or grossly unfair conclusions from the facts submitted to it’.520 The same general ‘hands off’ approach extends to the means used to ascertain the relevant facts, so that the Strasbourg Court will not generally question a national court decision as to the calling of a witness or an expert.521 However, where the reliability of evidence is in dispute, the existence of a fair procedure for the accused to question its authenticity and opposing its use is important; in addition, ‘the quality of the evidence’ and its ‘reliability or accuracy’ must be taken into account.522

Disclosure of evidence

The obligation to disclose all material evidence to the other party has been considered earlier under the right to adversarial proceedings.523

f. The principle of immediacy

An ‘important element of fair criminal proceedings is also the possibility of the accused to be confronted with the witness in the presence of the judge who ultimately decides the case’.524 This is important because ‘the observations made by the court about the demeanour and credibility of a witness may have important consequences for the accused’. Accordingly, ‘normally a change in the composition of the trial court after the hearing of p. 427an important witness should lead to the re-hearing of that witness’, although exceptions may be allowed where the facts as a whole suggest that the outcome of the case was not affected.525 Thus, there was a violation of the principle when the judges who finally convicted the applicant were not those who had earlier at the trial heard his evidence or that of other witnesses.526 The principle of immediacy has ‘relevance’ also to civil proceedings, but applies far less strictly.527

g. Freedom from self-incrimination

The right to a fair hearing includes freedom from self-incrimination in criminal cases. In one sense, this is an unexpected reading of Article 6(1), in that when Council of Europe member states added to the rights of the accused in the Seventh Protocol to the Convention, they considered including freedom from self-incrimination but decided not to do so. Nonetheless, the Court’s subsequent jurisprudence under Article 6 fills an obvious gap. As the Court stated in Ibrahim and Others v UK,528 ‘the right to silence and the right not to incriminate oneself are generally recognized international standards which lie at the heart of the notion of a fair procedure under Article 6’.

Freedom from self-incrimination follows from the autonomy of the individual, the need to avoid miscarriages of justice, and the principle that the prosecution should prove its case without the assistance of the accused.529 As stated in Saunders v UK, Article 6 it is ‘primarily concerned’ with the aspect of freedom from self-incrimination that concerns ‘respecting the will of an accused to remain silent’; accordingly 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 pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing’.530

With regard to the right to silence, freedom from self-incrimination includes not only incriminating statements but also statements which appear on their face ‘to be of a non-incriminating nature, such as exculpatory remarks or mere information on questions of fact’ since these ‘may be deployed in criminal proceedings in support of the prosecution case’.531 Article 6 is not confined totally to the refusal to answer questions or make an oral statement. It also applies to situations in which there is ‘coercion to hand over real evidence to the authorities’.532 Thus, in Funke v France,533 in which the applicant was required himself to produce documents, as opposed to being subjected to the execution by others p. 428of a search warrant for them, the evidence was not obtained independently of his will, so that his right to freedom from self-incrimination was in issue. In Jalloh v Germany,534 the Funke case was extended to cover a situation in which the applicant was subjected to the forced administration of an emetic causing him to regurgitate real evidence (drugs) from his body. Finding a breach of freedom from self-incrimination, the Grand Chamber distinguished the examples of material given in Saunders that fall outside the guarantee of freedom from self-incrimination on the following grounds. It noted that the material obtained in Jalloh was ‘real evidence’, as opposed to material that was wanted for forensic examination; that the degree of force used to obtain it was much greater than that used in the conduct of blood tests, etc; and that the procedure used to recover the drugs involved a breach of Article 3.

Freedom from self-incrimination is not absolute. What is prohibited is ‘improper compulsion’ to answer questions, etc. Compulsion may take various forms. Clearly, the use of physical force against a person aimed at obtaining a confession or other evidence from him is compulsion,535 as is requiring an accused to give evidence at his trial by law.536 The threat537 or imposition538 of a criminal sanction for failure to provide information is compulsion and may infringe freedom from self-incrimination whether or not the person concerned is later prosecuted for,539 or convicted of,540 an offence. In Brusco v France,541 it was held that requiring an accused to take an oath to tell the truth when answering police questions, on pain of being charged with perjury if he did not do so, was compulsion. The Court also held in the Brusco case that there was a breach of Article 6(1) because the accused was not informed by the police before they began questioning of his right to remain silent.542 A rule permitting the drawing of adverse inferences from the exercise of the right to silence is also a form of compulsion, by bringing pressure to bear to answer questions.543 Similarly, the use of an undercover agent to solicit information may involve compulsion. This was the case in Allan v UK,544 where the applicant confessed to a murder to an undercover police informer who was placed in his remand cell for the purpose of eliciting information from him, their conversations being recorded. Having resisted police questioning, the psychological pressures upon the applicant, who was induced to confess by persistent questioning by someone with whom he shared his cell, meant that the confession was obtained ‘in defiance of the will’ of the applicant. In contrast, there was no violation of the accused’s freedom from self-incrimination in Bykov v Russia.545 In that case, V, an employee of the applicant, told the police that he had been ordered by the applicant to kill the applicant’s business associate. The police had V visit the applicant’s house pretending that he had committed the murder, whereupon incriminating statements by the applicant were obtained by recorded conversations at the house. The Grand Chamber distinguished Allan on the grounds that the applicant was at his own house and not otherwise under p. 429pressure to talk to V; moreover, the evidence obtained by the covert operation was not the main evidence at the trial.

Compulsion is ‘improper’ if the ‘very essence of the right’ not to incriminate oneself is destroyed. In Murray (John) v UK,546 the Court held that the possibility of drawing adverse inferences from the failure of a suspect or an accused to answer questions, either before or at their trial for a criminal offence, does not amount to ‘improper compulsion’, destroying the ‘very essence of the right’, provided that proper safeguards are in place. In that case, the applicant was arrested in a house in which a police informer was being questioned by the IRA. He was convicted of aiding and abetting the informer’s false imprisonment. Under the legislation applicable to terrorist offences in Northern Ireland, the applicant was tried by an experienced judge without a jury who drew ‘strong inferences’ from the applicant’s failure, exercising his right to silence, to explain his presence in the house when he was arrested and interrogated by the police and from his refusal to give evidence at his trial. The Court held, by 14 votes to five, that there was no ‘improper compulsion’ upon the applicant to break his silence, because of the safeguards that applied. These were that adverse inferences could only be drawn if: (i) the accused had been cautioned that this could follow from his exercise of the right to silence; (ii) there was a prima facie case against the accused that could lead to his conviction if unanswered; and (iii) the judge both had a discretion as to whether it was appropriate to draw inferences from silence and had to give reasons should he do so. Given these safeguards and the ‘formidable’ case against the applicant, the Court concluded that the drawing of adverse inferences on the facts was ‘a matter of common sense’ and could not be regarded as ‘unfair or unreasonable’. Whereas it was contrary to the right to freedom of self-incrimination to base a conviction ‘solely or mainly’ on the accused’s silence, this should not prevent that silence being taken into account in situations ‘which clearly call for an explanation’, provided that satisfactory safeguards apply. As the Court noted, the UK legislation providing for the drawing of inferences simply placed upon a ‘formalized’ basis the practice of criminal courts in ‘a considerable number of countries’ in Europe.

In the Murray (John) case, the Court distinguished Funke v France, mentioned earlier in the section. In Funke, the applicant was convicted and fined for an offence of refusing to produce bank statements, which it was believed existed, at the request of the customs authorities who suspected him of having committed offences concerning financial dealings abroad.547 The ‘degree of compulsion’ to which the applicant was subjected in Funke destroyed the ‘very essence’ of his freedom from self-incrimination.548

Adverse inferences were also at issue in Condron v UK.549 There it was held that where adverse inferences may be drawn not by a judge, as happened in the Murray case, but by a jury, a necessary additional safeguard that is required to prevent an infringement of the p. 430right to freedom from self-incrimination is that the jury is directed that ‘if it was satisfied that the applicants’ silence at the police interview could not sensibly be attributed to their having no answer or none that would stand up to cross-examination it should not draw an adverse inference’. In the Condron case, the applicants, who were heroin addicts, were suspected of drug dealing. They exercised their right to silence during police questioning on the advice of their solicitor, who was present during the interview and was concerned that they would not be able to follow the questions because of the influence of drugs. In contrast with the Murray case, they did give evidence later at the trial. Applying legislation that contained the safeguards present in the Murray case, the judge directed the jury that they might draw adverse inferences from the accused’s silence, but, in breach of Article 6, did not draw their attention to the possibility that there might have been a good reason for their remaining silent (viz following their solicitor’s advice) other than that they had no satisfactory answers to give.

The ‘very essence’ of the right was also destroyed in Heaney and McGuiness v Ireland.550 In that case, the applicants were arrested in a house on suspicion of membership of the IRA, and of involvement in a suspected terrorist bombing that had occurred nearby hours earlier. When they refused to answer questions about the bombing or their presence in the house, the applicants were requested to provide an account of their movements during the relevant period under a statute that made failure to give such an account a criminal offence, but they refused to do so. They were later acquitted of an offence involving membership of the IRA but convicted of the offence of failing to provide the requested account of their movements. The latter convictions, resulting in sentences of six months’ imprisonment, were held to be a violation of freedom from self-incrimination. Article 6 applied, as the applicants were ‘substantially affected’ by being arrested on the basis of their suspected criminal activities, and there was ‘improper compulsion’ in breach of that Article, because the ‘degree of compulsion’ applied through the imposition of a criminal sanction for failure to supply the requested information destroyed the ‘very essence’ of the right to freedom from self-incrimination.

In the Murray (John) and Heaney and McGuiness cases, the Court adopted a ‘degree of compulsion’ criterion to be applied when deciding whether the compulsion was ‘improper’ so that the ‘very essence’ of the right to freedom from self-incrimination had been destroyed. In Jalloh v Germany,551 the Court revised and added to this criterion. The Court stated that it would have regard to the following three criteria: ‘the nature and degree of the compulsion, the existence of any relevant procedural safeguards, and the use to which any material so obtained is put’. Applying these three criteria to the facts, the Court noted that the ‘nature and degree’ of the compulsion in Jalloh had interfered with the applicant’s physical and mental integrity to the point where it was ‘inhuman and degrading treatment’; that while there were generally sufficient procedures to prevent the arbitrary or improper use of compulsion, the applicant’s ability to withstand the force used had not been fully established because of his poor German; and that the evidence obtained was the decisive evidence in the case. The Court also introduced a fourth criterion in Jalloh, namely the weight of public interest in the investigation, but concluded that this could not on the facts justify such a grave interference with the applicant’s physical and mental integrity. The use of this fourth criterion was not apparent in the earlier case of Heaney and McGuiness v Ireland.552 There the Court rejected the defendant government’s argument that it could p. 431require the applicants to give an account of their movements or face a criminal sanction of up to six months’ imprisonment as a ‘proportionate response’ to a terrorist and security threat: such public interest considerations could not justify the imposition of a criminal sanction for remaining silent that destroyed the ‘very essence’ of the right.

In O’Halloran and Francis v UK,553 the Grand Chamber confirmed and applied the criteria in Jalloh. In that case, each of the two applicants had been required, on pain of criminal sanction, to identify to the police the driver of his car in connection with a speeding offence. The first applicant revealed that he was the driver and was convicted of the speeding offence. The second did not reveal who the driver was and was convicted of a different criminal offence of failing to identify the driver and fined for not doing so. The Grand Chamber held, by 15 votes to two, that neither the threat nor the imposition of the criminal sanction for not identifying the driver destroyed the ‘essence’ of the right to freedom from self-incrimination. It did so on the basis of the ‘special nature of the regulatory regime at issue and the limited nature of the information sought’, both of which considerations the Court addressed under the first of the Jalloh criteria. As to the former, the Court stressed that the regulatory regime for motor vehicles was motivated by their ‘potential for grave injury’.554 As to the latter, the Court noted that only the name of the driver was required, which in itself was not incriminating. The Court also noted, in terms of the third Jalloh criterion, that many other elements beyond the identification of the driver were needed to prove guilt.555 Although the Court did not expressly refer to the fourth, public interest, Jalloh criterion, it can be seen to underlie the Court’s reference to the motivation for the regulatory regime, as can its comment that ‘those who choose to keep and drive motor cars can be taken to have accepted certain responsibilities and obligations’,556 including informing the authorities of the drivers of their vehicles.

Public interest considerations were also relevant in Allen v UK.557 In that case, after being pressured, the applicant eventually made the required declaration of his assets for tax purposes but was convicted of making false statements in it. This was held not to be a breach of freedom from self-incrimination because the applicant did not allege that he was being forced to reveal prior acts or omissions that might contribute to his conviction for some other offence:558 instead, the offence of which he was convicted was committed only by the false statements in his declaration. In any event, an obligation to declare income and capital for the assessment of tax was ‘a common feature of the taxation systems of contracting states and it would be difficult to envisage them functioning effectively without it’.559 Hence, it would seem that even an accurate return of income or capital (that is required for tax purposes on pain of criminal sanction) that reveals prior tax evasion would not be a breach of freedom from self-incrimination.

In Weh v Austria,560 it was pointed out that there are two different kinds of cases in which breaches of the right to freedom of self-incrimination have been found by the European Court. First, there are cases in which compulsion is used ‘for the purpose of obtaining information which might incriminate the person concerned in pending or anticipated criminal proceedings against him, or—in other words—in respect of an offence with which that person has been “charged” within the autonomous meaning of Article 6(1)’.561 p. 432Second, there are cases of ‘incriminating information compulsorily obtained outside of the context of criminal proceedings’ that is later used in criminal proceedings against the person concerned.562 Most cases that raise freedom from self-incrimination issues are of the first kind. Saunders v UK563 is a case of the second kind. In that case, the applicant, on pain of criminal sanction, was required by law to answer (and did answer) questions put to him by Department of Trade and Industry inspectors in the course of their administrative investigation under company law into the conduct of a company takeover. Although this requirement did not per se raise an issue of freedom of self-incrimination, the use to which the information was put might do. In the Saunders case, the answers that the applicant gave, although not directly self-incriminating, were introduced by the prosecution to great effect in his later successful prosecution for offences involving fraud. There was held to be ‘improper compulsion’ in violation of Article 6.

Although acknowledging that an accused may waive his right to freedom from self-incrimination, in Aleksandr Zaichenko v Russia,564 the Court rejected the government’s claim of waiver because ‘being in a rather stressful situation and given the relatively quick sequence of the events [at a road check], it was unlikely that the applicant could reasonably appreciate without a proper notice the consequences of his being questioned in proceedings which then formed the basis for his prosecution’.

h. Entrapment

Entrapment is conduct inciting the commission of a criminal offence by a person who would otherwise not have committed it. The use in a criminal trial of evidence obtained by incitement may render the trial unfair in breach of Article 6(1). ‘While the Court accepts the use of undercover agents as a legitimate investigative technique for combating serious crimes, it requires that adequate safeguards against abuse be provided for, as the public interest cannot justify the use of evidence obtained as a result of police incitement.’565

The Court applies substantive and procedural tests of incitement.566 Applying the substantive test, it draws a distinction between the investigation of criminal activity in an ‘essentially passive manner’, which is permissible, and incitement, which is not. The burden is on the prosecution to prove that there was no incitement, ‘provided that the defendant’s allegations are not wholly improbable’.567 In Teixeira de Castro v Portugal,568 requests to the applicant by undercover police officers for him to supply heroin were found to be incitement. There were no indications that the applicant was predisposed to commit crime:569 he had no criminal record and all the evidence suggested that he was essentially a drug user who was prepared to help others in need, rather than a person minded and equipped to deal in drugs. The Court also took into account that the police action was not part of an anti-drug trafficking operation ordered and supervised by a judge.570 The admission p. 433of evidence obtained by the incitement made his trial unfair in violation of Article 6(1). There was also incitement in Ramanauskas v Lithuania,571 in which a state prosecutor who had no criminal record had been approached and bribed by the police to secure an acquittal. In contrast, in Volkov and Adamskiy v Russia,572 there was no incitement when the police, acting on the basis of incriminating information received and acting as customers, asked to buy computer software from the applicants, who then supplied unlicensed products. There was also no incitement when an undercover agent ‘joined’ drug dealing activities already underway and which he had not instigated.573 Similarly, there was no incitement where the police used an informer to participate in corruption activities which he had brought to their attention.574

When, in application of the substantive test, the Court finds ‘with a sufficient degree of certainty’ that incitement has not occurred, that will ‘normally’ be sufficient for the use of evidence resulting from it not to raise an issue under Article 6(1).575 If the substantive test is ‘inconclusive’, the procedural test applies and is decisive. The test requires that an ‘arguable complaint’ of incitement may be raised as a defence or ‘gives grounds for the exclusion of evidence or leads to similar consequences’.576 This must be possible in court proceedings that are ‘adversarial, thorough, comprehensive and conclusive on the issue of entrapment, with the burden of proof on the relevant prosecution authority to demonstrate that there was no incitement’.577 If the substantive test indicates incitement, the trial will be in violation of Article 6(1) unless, exceptionally, the application of the procedural test indicates that the proceedings were not unfair.578

In Shannon v UK,579 the question arose whether the use of entrapment evidence obtained not by the police or others acting for them, but by private persons acting on their own initiative, might give rise to unfairness in breach of Article 6. In that case, the applicant, a well-known TV actor, agreed to provide a News of the World journalist, disguised as a sheikh, with cocaine. The applicant was convicted of supplying drugs illegally, the journalist’s recordings being a key part of the evidence. While noting that the Teixeira de Castro case was different in that it involved a direct ‘misuse of state power’, the Court nonetheless stated that the use by the prosecution as evidence in court of information handed over to the state by a third party may ‘in certain circumstances’ render the proceedings unfair. However, on the facts of the case the Court found no breach of Article 6, essentially because the applicant was, in contrast with the applicant of the Teixeira de Castro case, predisposed to supply drugs, responding readily in the manner of an experienced supplier.

i.p. 434 Retroactive legislation designed to defeat a litigant’s claim

Retroactive legislation designed to defeat a litigant’s claim against the state in the courts in pending proceedings is in breach of the ‘principle of the rule of law and the notion of a right to a fair trial enshrined in Article 6’.580 In Stran Greek Refineries and Stratis Andreadis v Greece,581 the state challenged in the courts an arbitration award against it arising out of a contract with the applicants. While the state’s appeal to the Court of Cassation against lower court judgments was pending, the Greek Parliament, in breach of Article 6, enacted legislation that made it ‘inevitable’ that the arbitration award in the applicants’ case was judicially declared void. The rule concerning retroactive legislation extends to cases in which the state is not a party, in which legislative interference prevents a ‘fair trial’ between the parties.582 Exceptionally, retroactive legislation that interferes with the administration of justice in pending cases is not in breach of Article 6 if it can be justified on ‘compelling’ public interest grounds.583 The state’s financial needs are not in themselves sufficient for this purpose.584 Legislation enacted after a court judgment has become final that affects its outcome is permissible.585

j. A reasoned judgment

The requirement of a ‘fair’ hearing supposes, in both criminal and civil cases, that a court will give reasons for its judgment. Whereas national courts are allowed considerable discretion in the structure and content of their judgments, they must ‘indicate with sufficient clarity the grounds on which they base their decision’ so as to allow a litigant usefully to exercise any available right of appeal.586 Further justifications for the need for a reasoned judgment are the duty of national courts under Article 6 ‘to conduct a proper examination of the submissions, arguments and evidence adduced by the parties’587 and the interest of the public in a democratic society in knowing the reasons for judicial decisions given in its name.588 In Ramda v France,589 the Strasbourg Court stated that its task was ‘to determine whether, in the light of all the circumstances of the case, the proceedings afforded sufficient safeguards against arbitrariness and made it possible for the accused to understand why he was found guilty’.

Precisely what is required by way of reasons will depend upon the nature of the decision and the circumstances of each case.590 ‘Without requiring a detailed answer to every p. 435argument advanced by the complainant, this obligation [to give reasons] presupposes that parties to judicial proceedings can expect to receive a specific and explicit reply to the arguments which are decisive for the outcome of those proceedings.’591 However, a court’s silence in response to an argument may ‘reasonably construed as an implied rejection’ in the particular circumstances.592 Merely stating that a party has been grossly negligent where such negligence is crucial to the decision without explaining why this is so is unlikely to comply with Article 6.593 Likewise, giving a reason for a decision that is not a good reason in law594 or on the facts595 will not do so. There was inadequate reasoning where a court did not address inconsistencies in witness evidence and the mental condition of a key witness in its judgment.596 The failure to consider ‘a specific, pertinent and important point’ made by the applicant in a social security claim was also a violation.597 In cases relating to interferences with Convention rights, the Strasbourg Court seeks to establish that the reasons are not ‘automatic or stereotypical’, ie that they respond to the particular circumstances of the case.598 In the absence of exceptional circumstances, the required reasons for a court judgment must be given by the trial judge.599

In Taxquet v Belgium,600 the Grand Chamber held that a jury does not have to give reasons for its decision. Instead, Article 6 will be complied with provided that there are ‘sufficient safeguards … to avoid any risk of arbitrariness and to enable the accused [and the public] to understand the reasons for his conviction’. The safeguards may include ‘directions or guidance provided by the presiding judge to the jurors on the legal issues arising or the evidence adduced, and precise, unequivocal questions put to the jury by the judge, forming a framework on which the verdict is based or sufficiently offsetting the fact that no reasons are given for the jury’s answers’. In addition, the existence of a right of appeal capable of remedying an improper verdict is relevant. In the Taxquet case, there was a breach of Article 6 in the absence of sufficient safeguards. Questions were put to the jury by the presiding judge, but the accused had been tried with seven co-defendants and the questions were identical for all of them, so that the applicant was unable to determine why he in particular was found guilty. There was also only a right of appeal on points of law, so that the reasons for the applicant’s conviction might not emerge. In Judge v UK,601 there were sufficient safeguards (details in the indictment, directions by the judge, and a right to appeal for a miscarriage of justice) for the applicant to understand why he had been convicted so that the failure of the jury to give reasons did not render his trial unfair. Similarly, p. 436in Lhermitte v Belgium,602 it was held, by ten votes to seven, that although the jury had not indicated why they had found the applicant mentally responsible for the murder of her children when psychiatric experts at the trial had indicated otherwise, the statements by the sentencing judgment and other aspects of the proceedings should have made this sufficiently clear to her.

The right to a reasoned judgment applies to appellate, as well as lower court, decisions, although an appellate judgment may not have to be so fully reasoned. It may be sufficient for an appeal court that agrees with the reasoning of the trial or lower appeal court simply to incorporate that reasoning by reference, or otherwise indicate its agreement with it.603 The essential requirement in such cases is that, in one way or another, the appeal court shows that it ‘did in fact address the essential issues’ in the appeal, and did not endorse without evaluation the decision of the lower court604 or allow an appeal without addressing them.605 Decisions by appeal courts rejecting appeals in very summary terms where there is clearly no merit in the appeal have been found not to be in breach of Article 6.606 When refusing leave to appeal, there is no obligation to give detailed reasons or, in some cases, to give reasons at all.607

Article 6 requires a national court of final jurisdiction to give reasons for a refusal to request a preliminary ruling from the European Court of Justice.608 The nature and extent of the reasoning required for the refusal depends upon the circumstances of the case. In Baydar v Netherlands,609 the Court stated that ‘summary reasoning’ was sufficient where, as in that case, ‘it is clear from the circumstances that the decision is not arbitrary or otherwise manifestly unreasonable’.

k. The principle of legal certainty

The right to a fair hearing requires that, in accordance with the principle of legal certainty, the judgment by the final court that decides a case is res judicata and hence irreversible. In the leading case of Brumărescu v Romania,610 a court of first instance held that the nationalization of the applicant’s parents’ house was invalid. In the absence of any appeal to a higher court, the decision became res judicata and the house was returned to the applicant. Later, the Procurator-General of Romania, who was not a party to the case, successfully applied to the Supreme Court of Justice for the decision to be quashed on the ground that the trial court had exceeded its jurisdiction. The Grand Chamber ruled in favour of the applicant on the basis of the principle of legal certainty, compliance with which was required by Article 6 as a fundamental aspect of the rule of law which was included in the Convention Preamble as a ‘part of the common heritage’ of the contracting states. The power of the Prosecutor-General in issue in the Brumărescu case to initiate ‘supervisory p. 437review’ proceedings was a common feature in former Soviet-style legal systems and was exercisable by a ‘range of persons’, including judges who were ‘chairmen of the courts and their deputies’.611

The Brumărescu ruling applies to the courts as well as to members of the executive, as the issue is one of legal certainty and not just of interference by the executive.612 Thus, in Driza v Albania,613 it was a violation of the principle of legal certainty for the Supreme Court to allow the President of that Court to quash a final decision of the Supreme Court (Administrative Division). A procedure for quashing a final judgment may, however, be consistent with the principle if it is ‘made necessary by circumstances of a substantial and compelling character’, which would include the need to correct a miscarriage of justice.614 There is also no breach where earlier case law is overturned by the courts and applied retrospectively to the applicant’s pending case:615 ‘case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement’.616 Similarly, divergencies in the case law of the courts within a legal system are acceptable provided that domestic law provides for a mechanism for overcoming ‘profound and longstanding differences’ and these mechanisms are applied and are effective.617

In Oleksandr Volkov v Ukraine,618 the principle of legal certainty was applied to two other situations. In disciplinary proceedings leading to the dismissal of a Supreme Court judge, members of parliament, acting in breach of the parliamentary voting rules, cast votes for absent MPs; and the dismissal proceedings had no time limit, requiring the judge to defend himself in respect of events occurring in ‘the distant past’. Both situations violated the principle of legal certainty.

Although the Brumărescu case was decided by the Grand Chamber on the basis of the residual right to a ‘fair hearing’ in Article 6(1), in their concurring opinions Judges Rozakis, Bratza, and Zupančič took the view, which has a lot to commend it, that the situation is best considered as concerning the ‘right of access to a court’. In their judgments in later cases, Chambers of the Court vary in their reasoning, referring to a ‘fair hearing’;619 a ‘fair hearing’ and a ‘right of access’;620 or generally to a ‘right to a court’.621

III.p. 438 The Right to a Public Hearing and to Public Pronouncement of Judgment

a. The right to a public hearing

The right to a ‘public’ hearing applies in criminal and civil cases. Its purpose is to ‘protect litigants against the administration of justice in secret with no public scrutiny’, thereby contributing, through the resulting transparency, to a fair hearing and the maintenance of confidence in the courts by the public.622 To this end, the presence of the press, which includes reporters for the electronic media, is particularly important.623 The right to a public hearing is linked to the right to an oral hearing. When an oral hearing occurs, whether as required by Article 6 or as provided by a state in its discretion,624 it must be a ‘public’ hearing unless one of the Article 6(1) grounds for excluding the public applies. Court hearings must be open to the public in fact as well as in law. Accordingly, Article 6 will only be complied with if the public is ‘able to obtain information about its date and place and if this place is easily accessible to the public’.625

The right to a public hearing has been a particular problem for administrative or disciplinary tribunals or other bodies that are not ‘classic’ courts within the ordinary court system, but that are competent to adjudicate upon offences that qualify as ‘criminal’ for the purposes of Article 6626 or upon a person’s ‘civil rights and obligations’.627 In the case of such a body, its (not uncommon) failure to provide a public hearing may be remedied by an appellate court that complies with the public hearing requirement and has full jurisdiction to rule on the facts and the law.628 In the case of a court ‘of the classic kind’, this will not be sufficient. ‘Given the possible detrimental effects that the lack of a public hearing before the trial court could have on the fairness of the proceedings, the absence of publicity could not in any event be remedied by anything other than a complete re-hearing before the appellate court.’629 Supposing that the trial court does meet the public hearing requirement, any appeal to a higher court that the state provides in its discretion must also comply with that requirement if the higher court has jurisdiction to examine the case ‘as to the facts and the law and [in a criminal case] make a full assessment of the issue of guilt or innocence’; however, the ‘special features’ of the appellate court proceedings, for example extending only to ruling on points of law, may mean that they are not subject to the public hearing requirement.630

Whereas court hearings must generally be in public, proceeding may be held in camera where this is ‘strictly required by the circumstances of the case’ on one or more of p. 439the grounds listed in Article 6(1).631 In the interpretation of similar lists of restrictions to the rights guaranteed in Articles 8–11 of the Convention, the Court, and formerly the Commission, requires the restriction to be a proportionate response to a pressing social need.632 This interpretation is based upon the wording ‘necessary in a democratic society’ together with the lists of restrictions in those Articles. Although the text of Article 6(1) does not contain this formula, such a balancing approach is by followed the Court.633 However, the Court has not referred in its judgments to a ‘margin of appreciation’ in this context. The list of permitted restrictions reads as an exhaustive one, but in Mraović v Croatia,634 the Court referred to the need to protect rape victims from victimization as well as their privacy.

As to the particular grounds on which the public may be excluded,635 in the prison disciplinary proceedings case of Campbell and Fell v UK,636 the Court relied upon the ‘public order’ restriction in Article 6(1), interpreting the term as including prison security as well as public disorder.637 ‘National security’ may justify a hearing in camera in a prosecution for disclosing state secrets.638 In ‘national security’ cases in which the Court does not have access to the material on which the decision to exclude the public is based, it will scrutinize the national decision-making procedure to ensure that it incorporate ‘adequate safeguards to protect the interests of the persons concerned’.639 In Nikolova and Vandova v Bulgaria,640 the Court accepted that ‘national security’ was a legitimate grounds for hearing the first applicant’s appeal against her dismissal from the police in camera, but concluded that the national court had excluded the public solely on the basis that the hearing would examine classified documents, without contemplating whether a measure less than a wholly in camera hearing might offer sufficient protection for them.

As to other grounds for a hearing in camera, in B and P v UK641 civil proceedings in the allocation of the residence of children between parents following a divorce or separation were characterized by the Court as ‘prime examples’ where private court hearings may be justified, in order to ‘protect the privacy of the child and parties’ and to ‘avoid prejudicing the interests of justice’. The exclusion of the public from medical disciplinary proceedings may also be permissible to protect ‘professional confidentiality and the private lives of patients’.642 A trial in camera may, as noted, be justified to safeguard the privacy of a victim of rape p. 440and ‘to protect them from secondary and/or repeat victimization’.643 A ‘private lives’ justification was rejected in an inheritance of property case.644 As to the ‘interests of justice’, in Krestovskiy v Russia,645 the Court rejected a claim that an in camera hearing was necessary in the interest of the safety of persons in court in a murder trial involving organised crime when measures short of closure (eg metal detector searches) had not been considered. In Welke and Białek v Poland,646 the exclusion of the public was held ‘strictly necessary’ in the interests of justice in a police ‘covert operations’ case.

More generally, the Court has accepted that it is permissible to exclude a whole class of cases from a public hearing, subject to the Court deciding that the general exclusion of cases within the class falls within one of the grounds listed in Article 6(1). Thus, in B and P v UK,647 the Court found it acceptable that there was a rebuttable presumption in favour of a private hearing in all proceedings under the Children Act 1989.

Article 6(1) provides an entitlement to a ‘public’ hearing as an individual right which may be restricted on the initiative of the state on a permitted ground. However, there may be cases in which an accused or other litigant would prefer a private hearing. In such a case, the question will be whether insistence on a public hearing by the state would be a violation of the right to privacy in Article 8.

b. The right to an oral hearing

Although not expressly mentioned in the text of Article 6, an oral hearing ‘constitutes a fundamental principle enshrined in Article 6 (1)’648 and is ‘necessarily’ implied by the right to a ‘public hearing’.649 In criminal cases, it also follows from the nature of the guarantees in Article 6(3)(c), (d), and (e).650 If the national law provides for an oral hearing (whether one required by Article 6 or not), a litigant must be informed of the hearing in good time.651 Litigants must also have the opportunity of requesting an oral hearing652 and be given reasons for refusal to hold one.653

The obligation to hold an oral hearing is not an absolute one; written proceedings are permissible in some kinds of cases. As to criminal cases, in Jussila v Finland,654 the Grand Chamber stated that, although the right to an oral hearing ‘is particularly important in the criminal context’, it ‘would not exclude that in the criminal sphere the nature of the issues to be dealt with … may not require an oral hearing’. The Grand Chamber distinguished between criminal cases that do not carry ‘any significant degree of stigma’, and others that form a part of the ‘hard core of criminal law’. In Jussila, it held on the facts that an oral hearing was not required in a case involving the imposition and assessment of a tax surcharge. It also referred to cases involving administrative, prison disciplinary, customs, p. 441competition, and financial offences that fall within Article 6 under the Engel criteria but that do not strictly belong to the ‘traditional categories of the criminal law’ as being cases in which an oral hearing might not be required.

With regard to ‘civil rights and obligations’ cases, in Ramos Nunes de Carvalho e Sá v Portugal,655 the Grand Chamber stated that exceptional circumstances relating to ‘the nature of the issues to be decided’ may justify dispensing with a public hearing. It identified the following situations involving such ‘exceptional circumstances’: (i) ‘where there are no issues of credibility or contested facts which necessitate a hearing and the courts may fairly and reasonably decide the case on the basis of the case file’; (ii) ‘in cases raising purely legal issues of limited scope or points of law of no particular complexity’; and (iii) ‘where the case concerns highly technical issues’. As to the last of these situations, the Grand Chamber stated that in social security cases the national authorities are entitled, ‘having regard to the demands of efficiency and economy’, to dispense with a hearing, ‘as systematically holding hearings in such cases may be an obstacle to the particular diligence required’ in them.656

The Grand Chamber then gave the following examples or categories of ‘civil rights and obligations’ cases in which, to the contrary, a hearing is necessary: ‘(a) where there is a need to assess whether the facts were correctly established by the authorities; (b) where the circumstances require the court to form its own impression of litigants by affording them a right to explain their personal situation; (c) where the court needs to obtain clarification on certain points.’657 The following pre-Ramos Nunes de Carvalho e Sá cases fall within these categories. In De Tommaso v Italy,658 an oral hearing was necessary when the national courts had ‘to assess aspects such as the applicant’s character, behaviour and dangerousness’ when deciding whether to impose preventive measures (curfew, ban on weapons, etc) relating to his ongoing criminal activities. In Mutu and Pechstein v Switzerland,659 a professional speed skater should have been given an oral hearing in proceedings concerning her suspension for drug taking when the facts were disputed and the sanction affected her professional reputation. On the facts of the Ramos Nunes de Carvalho e Sá v Portugal case, the Grand Chamber ruled that the Supreme Court should have held a hearing of the applicant judge’s appeal against disciplinary sanctions as it would have allowed the Supreme Court ‘to undertake a more thorough review of the facts, which were disputed’. With regard to disciplinary sanctions generally, the Grand Chamber stated that ‘notwithstanding the technical nature of some discussions and depending what is at stake in the proceedings, public scrutiny may be viewed as a necessary condition for transparency p. 442and for protection of the litigants’ rights’.660 In addition, in L v Finland,661 it was held that decisions on the taking of children into public care and parental access to them required an oral hearing.

Where an oral hearing is required by Article 6(1),662 a court of first instance must provide that hearing where there is no right of appeal.663 In cases in which there has been an oral hearing at first instance, or in which one has been waived at that level,664 there is no absolute right to an oral hearing in any appeal proceedings that are provided. Instead, whether one is required on appeal ‘depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein’.665 Where the proceedings involve an appeal only on points of law, an oral hearing is generally not required.666 If an appeal court is called upon to decide questions of fact, an oral hearing may or may not be required, depending upon whether one is necessary to ensure a fair trial. In Ekbatani v Sweden,667 an oral hearing was required on appeal where there was a dispute as to the facts in a criminal case that involved the accused’s credibility: the accused’s guilt or innocence ‘could not, as a matter of a fair trial, have been properly determined without a direct assessment of the evidence given in person by the applicant’. In Lazu v Moldova,668 there was a breach of Article 6(1) when an appeal court that was required to re-hear a case on the facts held an oral hearing with the applicant and his lawyer present but reversed the applicant’s acquittal of a road traffic offence without recalling the prosecution witnesses for examination. In contrast, in Jan-Åke Andersson v Sweden,669 an oral hearing was not required in the case of a minor road traffic offence in which the appeal did not raise ‘any questions of fact or law which could not adequately be resolved on the basis of the case file’. What is at stake for the applicant is also relevant. Thus, in Helmers v Sweden,670 in a private criminal prosecution for defamation, it was relevant in appeal proceedings that the applicant’s professional reputation and career were at stake.

c. Waiver of a public or oral hearing

The possibility of waiver applies to both the rights to a public hearing and to an oral hearing.671 A person may waive his right to either right, so long as the waiver is done of his own free will ‘in an unequivocal manner’ and there is no ‘important public interest’ consideration that requires a public hearing.672 A waiver may be tacit, provided that it is clear from the facts that one is being made.673 An ‘unequivocal’ waiver was found to have been p. 443made in Håkansson and Sturesson v Sweden674 when the applicant failed to ask for a public hearing before a court, which by law conducted its proceedings in private unless a public hearing was considered by it to be ‘necessary’. The judgment can be criticized as requiring the applicant to take the initiative to request the application of an exception to a general rule, when the general rule should itself, consistently with Article 6(1), provide for a public hearing.675

d. The right to the public pronouncement of judgment

The right to have judgment pronounced publicly has the same purpose as the right to a public hearing.676 In contrast with that right, it is not subject to any exceptions in the text of Article 6(1). However, the Court has interpreted the wording ‘shall be pronounced publicly’ ‘with a certain degree of flexibility’.677 In consequence, whereas this wording appears to require that judgment be delivered orally in full in open court,678 the Court has allowed some exceptions. In general terms, in Pretto and Others v Italy679 the Court stated that the ‘form of publicity’ given to the judgment ‘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)’, with account being taken of the ‘entirety of the proceedings’, including the function of the court concerned and whether judgments have been pronounced in open court at any level in the case.

As a first exception, it may be sufficient that delivery in court is not of the full text of the judgment at all levels of proceedings. In Lamanna v Austria,680 there was no breach of Article 6(1) when the trial court’s judgment on a claim for compensation for detention was not delivered by it in public, but a summary of it was given in the Court of Appeal’s judgment which was delivered publicly. Remarkably, it was not delivered until six years after its adoption, on the order of the Supreme Court after an application on the delay had been declared admissible at Strasbourg. In Campbell and Fell v UK,681 in the special context of the former English prison disciplinary system, the Court accepted that a Board of Visitors award need not be delivered in the presence of ‘press and public’ in view of the problem of prison security. In Welke and Białek v Poland,682 it was sufficient that, in order to safeguard covert surveillance methods, only the (detailed) operative parts of the trial and appeal courts’ judgments were delivered publicly. In contrast, in Ryakib Biryukov v Russia,683 it was not sufficient for the trial and appeal courts just to read out the operative parts of their judgments in a civil case claiming hospital negligence without giving reasons.

Second, noting that the publication of some kinds of judgments—particularly those of courts of cassation—by making them available to the public in the court registry instead of delivering them publicly was a long-standing tradition in some Council of Europe states, in the Pretto case the Court held that Article 6(1) was complied with when this practice was followed by the Italian Court of Cassation. The Strasbourg Court noted that the Court p. 444of Cassation had jurisdiction to consider only points of law and that it had given its judgment after a public hearing, Bearing in mind the purpose of the ‘pronounced publicly’ obligation, which was to ensure public scrutiny, publication in the registry was in these circumstances consistent with Article 6(1).684

In other cases of non-delivery of judgments in public, the Court has been less sympathetic. In Werner v Austria,685 the judgments of the trial court and the first court of appeal on the applicant’s claim for compensation for detention after criminal proceedings against him had been discontinued were not delivered in open court. They were served on the applicant but were otherwise only available from the registry to third parties who, in the relevant court’s opinion, could show a legitimate interest. Since it might be of importance to the person concerned that the public should know that any suspicion against him has been dispelled, the Strasbourg Court held that there was a breach of Article 6(1) because ‘no judicial decision was pronounced publicly and … publicity was not sufficiently ensured by other appropriate means’. In Vasil Vasilev v Bulgaria,686 there was a violation of Article 6(1) when no part of the trial or appeal court judgments in a civil claim for damages were delivered publicly because the case had been automatically ‘classified’ as the case file contained evidence of covert surveillance. Although the judgments were declassified a year or so later, and then became available to the parties, they were still not available to the public. There was a violation of the public pronouncement obligation because there had been ‘no assessment of the necessity and proportionality’ of the classification of the case and because in cases involving classified information there were means of allowing some ‘some degree of public access to the decisions given while maintaining the confidentiality of sensitive information’.

A third exception concerns publication of orders or judgments relating to children’s and parental rights. These may be restricted to interested persons and not made available to the public at large. Thus, in B and P v UK,687 it was sufficient that anyone who could establish an interest could consult or obtain a copy of the full text of the orders or judgments made by the court of first instance in child residence cases. Further, the publication of first-instance and appeal court judgments in law reports in such cases sufficiently allowed the general public to study the approach taken by the courts. In the B and P case, the Court invoked the privacy of the children and the parents and the ‘administration of justice’ as justifications for this decision on the public pronouncement of judgment.

IV. The Right to Trial within a Reasonable Time

The purpose of the ‘reasonable time’ guarantee, which applies to both criminal and civil cases, is to protect ‘all parties to court proceedings … against excessive procedural delays’688 and ‘underlines the importance of rendering justice without delays which might jeopardize its effectiveness and credibility’.689 In criminal cases, it is also ‘designed to avoid p. 445that a person charged should remain too long in a state of uncertainty about his fate’.690 The effect that being an accused has upon a person’s reputation is relevant too.

In criminal cases, the reasonable time guarantee runs from the moment that an accused is subject to a ‘criminal charge’.691 In civil cases, it normally begins to apply from the initiation of court proceedings, but sometimes earlier.692 In both kinds of case, the guarantee continues to apply until the case is finally determined.693 If proceedings are still pending in the national courts when an application is under consideration at Strasbourg, the period covered by the reasonable time guarantee runs until the judgment is given in the case by the Strasbourg Court.694 If the respondent state becomes a party to the Convention after Article 6 has begun to apply to a particular case, the guarantee will only begin to run as of the date of ratification.695 Nonetheless, in assessing the reasonableness of the time that is taken to determine a case as of that date, ‘account must be taken of the then state of proceedings’.696 Thus, a decision as to whether a case has been treated with the necessary expedition after that date will be influenced by the fact that the case has already been pending for a long time.697

The obligation to decide cases within a reasonable time extends to constitutional courts, subject to the need to take account of their special role as guardian of the constitution.698 In particular, they may delay consideration of a case to ensure that sufficient time is taken to rule on a matter of constitutional importance, possibly in combination with other similar cases.

The reasonableness of the length of proceedings in both criminal and civil cases depends on the particular circumstances of the case.699 There is no absolute time limit. Factors that are always considered are the complexity of the case, the conduct of the applicant, and the conduct of the competent administrative and judicial authorities.700 The Court also takes into account what is at stake for the applicant.701 No margin of appreciation doctrine is applied, at least expressly, when determining the reasonableness of the time taken; the European Court simply makes its own assessment.702 When it does so, it must bear in mind that Article 6 can only require such expedition as is consistent with the proper p. 446administration of justice.703 Occasionally, the Court has been willing to take into account other broader considerations. Thus, in Katte Klitsche De La Grange v Italy,704 the Court was prepared to tolerate ‘abnormal’ delays totalling over four years because they concerned ‘such a sensitive area as town planning and the protection of the environment’ and ‘could have and in fact did have important repercussions’ for Italian law.

As to the first of the three factors listed earlier, a case may be complex for many reasons, such as the volume of evidence,705 the number of defendants or charges,706 the need to obtain expert evidence707 or evidence from abroad,708 or the complexity of the legal issues involved.709 Although the Court takes into account a case’s complexity, there may come a point where it will simply regard the proceedings as too long to be reasonable.710

With regard to the second factor, the state is not responsible for delay that is attributable to the conduct of the applicant. While an applicant is entitled to make use of his procedural rights, any consequential lengthening of proceedings cannot be held against the state.711 In a criminal case, although an accused is not required ‘actively to co-operate with the judicial authorities’,712 if delay results, for example from his refusal to appoint a defence lawyer, this is not the responsibility of the state.713 But a state is responsible for its negligent delay in discontinuing proceedings against an accused: it cannot claim that the accused should have reminded it.714 Where an accused flees from the jurisdiction or disappears while subject to a ‘charge’, the time during which he has absented himself from the proceedings is not to be taken into account in determining the length of proceedings, unless there is a ‘sufficient reason’ for the flight.715

In civil litigation, some national legal systems apply the principle that the parties are responsible for the progress of proceedings.716 This does not, however, ‘absolve the courts from ensuring compliance with the requirements of Article 6 concerning reasonable time’; the state must itself take appropriate steps to ensure that proceedings progress speedily.717 Whether such a principle applies or not, the responsibilities of the applicant in civil cases are 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 proceedings’.718 Delay caused by the conduct of the applicant’s legal aid lawyer p. 447in civil proceedings is not attributable to the state: although he is publicly appointed, such a lawyer acts for his client, not the state.719 Nor is a state responsible for delay that results from the conduct of the defendant against whom the applicant brings a civil claim.720

As to the third factor, the state is responsible for delays that are attributable to its administrative or judicial authorities.721 In criminal cases, breaches of Article 6(1) have been found because of unjustified delays in the conduct of the preliminary investigation in a civil law system,722 entering a nolle prosequi,723 appointing judges,724 communicating the judgment to the applicant,725 and the commencement of appeals.726 Whereas it may be sensible to hear cases against two or more accused persons together, this cannot ‘justify substantial delay’ in the bringing of a case against any one of them.727 But, in appropriate circumstances, a court may be justified in permitting a delay in order to allow political or other passions to cool.728 A state will also not be responsible for reasonable delays resulting from obtaining evidence from abroad.729 Nor is it responsible for delays caused by a lawyer’s strike.730

Where applicable, the same considerations apply in civil cases too. In such cases, states have been held responsible for delays in civil and administrative courts in performing routine registry tasks,731 in the conduct of the hearing by the court,732 controlling expert witnesses,733 in the presentation of evidence by the state,734 for the adjournment of proceedings pending the outcome of another case,735 and for delays caused by lack of coordination between administrative authorities.736 A state is not responsible for the time taken to obtain a preliminary ruling from the European Court of Justice.737

As indicated earlier, when assessing the reasonableness of the length of proceedings, the Court takes into account what is at stake for the applicant. The Court has identified a large number of kinds of case in which particular expedition is required on this basis. These include cases concerning the applicant’s employment;738 civil status;739 custody of p. 448children;740 education;741 health;742 reputation;743 title to land;744 business interests;745 and compensation for road accidents.746 It may be relevant that the applicant has been charged interest on the sum in dispute while the case is pending.747 In criminal cases, the likelihood of a life sentence or other heavy sentence is relevant.748 The prominence of an accused in politics or in business does not warrant priority treatment.749

Criminal cases generally require more urgency than civil ones750 and a more rigorous standard applies where an accused is in detention.751 In such cases, the reasonable time guarantee in Article 6(1) overlaps with that in Article 5(3), under which ‘special diligence’ is also required in the time taken in cases where the accused is in detention.752 However, since Article 5(3) ceases to apply once an accused is convicted, the reasonable time guarantee in Article 6(1) alone protects a convicted person detained during subsequent appeal or other proceedings.753

When applying these factors, the Court has sometimes treated cases differently depending on whether the overall length of proceedings appears on its face to be reasonable or not. Where it appears reasonable, the Court has tolerated some proven, but small, instances of delay. Thus, in Pretto and Others v Italy,754 there were delays of several months before an appeal in a civil case was heard, but, ‘although these delays could probably have been avoided, they are not sufficiently serious to warrant the conclusion that the total duration of the proceedings [three years and six months] was excessive’. But, where there are substantial particular delays, the Court has found a breach even though the overall length appears reasonable. For example, in Bunkate v Netherlands,755 there was a breach of the reasonable time guarantee in a criminal case lasting, not unreasonably, two years and ten months over three levels of proceedings because there had been an unexplained delay of 15 months in transferring the appeal from one appeal court to another. In contrast, where the overall length of proceedings appears unreasonable, the Court has on occasion been less tolerant of small instances of unjustified delay.756 One general indicator that the Court has identified in reviewing cases where the overall length appears unreasonable is the repetition of orders by an appellate court for the re-examination of a case as a result of errors by the lower courts: such a situation ‘discloses a serious deficiency in the judicial p. 449system’ resulting in delays for which the state may be held responsible.757 In some extreme cases, the Court would appear to find a breach essentially on the basis of the excessive total length, quite apart from any particular instances of unjustified delay, taking the view that no proceedings that took so long could have been conducted diligently. For example, in Ferrantelli and Santangelo v Italy,758 the Court found a violation where a difficult murder trial had taken 16 years. Although, apart from an ‘inexplicable period of stagnation of nearly two years during the first investigation’, the case had proceeded regularly, such a length of time was just too long to be ‘reasonable’.

The discussion so far has supposed that the Court is considering whether the proceedings on the facts of a particular case have been conducted with sufficient expedition. There is, however, another dimension to the ‘reasonable time’ guarantee. The Convention places a duty on the contracting parties, which applies regardless of cost,759 ‘to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time’.760 It follows that a state may be held liable not only for any delay in the handling of a particular case in the operation of a generally expeditious system for the administration of justice, but also for a failure to increase resources in response to a backlog of cases and for structural deficiencies in its system of justice that cause delays.

As to a backlog of cases, the Court has drawn a distinction between a situation of ‘chronic overload’, involving an ongoing problem, for which the state may be liable, and a sudden or ‘temporary backlog’, for which it will not be liable if it takes ‘appropriate remedial action with the requisite promptness’.761 In Zimmermann and Steiner v Switzerland,762 the respondent state was held liable when administrative appeal proceedings of a straightforward kind, before the Swiss Federal Court, had taken nearly three-and-a-half years, during most of which time the applicants’ case had remained stationary. The agreed reason for the delay was that the Court was overworked and had for that reason given priority to urgent or important cases,763 within neither of which categories the applicants’ case fell. The court’s caseload had built up over several years, and adequate steps to increase the number of judges and administrative staff or otherwise reorganize the court system to cope with what had become a permanent problem had not been taken to remedy the situation by the time that the applicants’ appeal was heard. A situation of ‘chronic overload’ under which the German Constitutional Court had ‘laboured since the end of the 1970s’ was also a factor in finding a breach of the reasonable time guarantee in Pammel v Germany.764

However, in Buchholz v Germany,765 the state was not liable for a delay that resulted from a backlog of cases that was not reasonably foreseeable where it had taken reasonably prompt remedial action. In that case, the delay in the consideration of the applicant’s claim for unfair dismissal was attributable to a backlog of cases that had developed suddenly with the economic recession of the 1970s and because prompt steps had been taken to increase the number of judges when the problem became apparent. Although these steps did p. 450not benefit the applicant, they were all that could reasonably be expected of the respondent state in the circumstances.

More delicate than the problem of delays resulting from a backlog of cases is the question whether a state can be required to restructure the administration of its justice system to eliminate delays that are inherent in it. This question arose in Neumeister v Austria,766 in which much of the delay had occurred at the preliminary investigation stage. Under some civil law systems of criminal justice, including that in Austria, a person may spend a considerable length of time waiting for a ‘charge’ against him in the sense of Article 6 to be fully examined by an investigating judge when much of that examination is a repetition of work already done by the police in its investigation. If such a system, which has advantages in other respects, were altered to eliminate this overlap of time, the period during which an accused had a charge hanging over him would generally be reduced. In the Neumeister case, the Court confirmed that preliminary investigation systems of the kind described are not in themselves contrary to Article 6; the requirement is only that they be administered efficiently. It could not have been the intention of the drafting states that such a fundamental change in the legal systems of many of their number would be required.

The same question arose again in König v Germany,767 in the different context of the elaborate system of administrative courts in West Germany. Faced with one set of proceedings that had lasted nearly 11 years and were still pending, the Court first noted that it was not its function to comment on the structure of the courts concerned which, it conceded, was aimed at providing a full set of remedies for the individual’s grievances. It added, however, that if efforts to this end ‘resulted in a procedural maze, it is for the state alone to draw the conclusions and, if need be, to simplify the system with a view to complying with Article 6(1) of the Convention’. The implication is that if a case takes what is on the face of it an unreasonably long time, a state will not escape liability by providing that it has been dealt with efficiently within the limits of an unduly elaborate court structure.

What emerges generally from the case law of the Court on the reasonable time guarantee is the considerable length of time that both criminal768 and civil769 proceedings may take in European jurisdictions and the large number of cases in which the Court has found breaches of this part of Article 6.770 The problem is a serious and pervasive one in the legal systems of European states generally.771 The Court has taken steps, including pilot judgments to tackle the problem in several states, including Italy, Slovenia, Germany, and Greece. In Bottazzi v Italy,772 in response to the violations of the ‘reasonable p. 451time’ guarantee found at Strasbourg in many hundreds of ‘reasonable time’ violations in cases from Italy, the Strasbourg Court noted that the ‘frequency with which violations are found shows that there is an accumulation of identical breaches which are sufficiently numerous to amount not merely to isolated incidents’. This accumulation, the Court stated, ‘accordingly constitutes a practice that is incompatible with the Convention’. Following this ruling, later ‘reasonable time’ cases from Italy were commonly disposed in groups and after less detailed examination of the facts than would otherwise be the case.773 Italy adopted the ‘Pinto law’ by which a person may claim compensation in an Italian court for a breach of the Article 6 reasonable time guarantee. In Scordino v Italy (No 1),774 the Strasbourg Court noted that the Pinto law may constitute a domestic remedy for such a breach, but that it did not mean that a person who had suffered in this way could not bring a Strasbourg claim as a ‘victim’ of the breach; there was also a need to reform Italy’s judicial system to prevent such violations.

V. The Right to an Independent and Impartial Tribunal Established by Law

The right to a fair trial in Article 6(1) requires that cases be heard by an ‘independent and impartial tribunal established by law’. The right applies both to criminal and civil cases. There is a close interrelation between the guarantees of an ‘independent’ and an ‘impartial’ tribunal. A tribunal that is not independent of the executive is likely to be in breach of the requirement of impartiality also in cases to which the executive is a party. Likewise, a tribunal member who has links with a private party to the case is likely to be in breach of both requirements. For this reason, the Strasbourg Court commonly considers the two requirements together, using the same reasoning to decide whether the tribunal is ‘independent and impartial’.775 In respect of both requirements, there is a breach not only where there is proof of actual dependence or bias (subjective test), but also where the facts raise a ‘legitimate doubt’ that the requirement has not been met (objective test).

An important question is whether the right to an independent and impartial tribunal may be waived. Although it is tempting to accept that an applicant should not be allowed at Strasbourg to claim against a state a right which he has earlier unequivocally, and without pressure, waived at the national level, it is arguable that the requirement that a case always be decided by an independent and impartial tribunal is crucial to the operation of the rule of law, and that an Article 6 application should always be available to maintain this value. However, such indications as have been given by the Court—and they are not clear, unequivocal pronouncements—appear to accept that waiver is permitted, subject to the usual conditions (‘unequivocal manner’, etc).776

a.p. 452 A tribunal

A ‘tribunal’ was defined in Guðmundur Andri Ástráðsson v Iceland777 as follows:

… a ‘tribunal’ is characterized in the substantive sense of the term by its judicial function, that is to say determining matters within its competence on the basis of legal rules[778] and after proceedings conducted in a prescribed manner. It must also satisfy a series of further requirements, such as independence, in particular of the executive; impartiality; duration of its members’ terms of office; …

This definition contains organizational elements (independence, impartiality) that are included separately in Article 6(1). As to the functional element, an important feature of a tribunal is that it must be competent to take legally binding decisions: the capacity to make recommendations or give advice (even if normally followed) is not enough.779 For the purposes of Article 6(1), a tribunal ‘need not be a court of law integrated within the standard judicial machinery. It may be set up to deal with specific subject matter which can be appropriately administered outside the ordinary court system’.780 A tribunal’s decisions must also not be subject to being set aside by a non-judicial body;781 and the government must not be empowered by law not to implement them, even though the power is never exercised.782 The fact that a body has other functions (administrative, legislative, etc) does not in itself prevent it being a tribunal when exercising its judicial function.783 The requirement of independence and impartiality applies in civil law systems to investigating judges and their equivalents.784

As to membership, although a tribunal will normally be composed of professional judges, this is not an absolute requirement. Lay assessors are a common feature of ordinary courts in European legal systems,785 and a bench composed of lay magistrates, advised by a legally trained clerk (as in the English legal system), would appear to comply with Article 6. In Haarde v Iceland,786 a Court of Impeachment composed of a majority of lay judges (eight to seven) complied with the requirements of independence and impartiality; although it was possible that ‘political sympathies’ may have played a part in the appointment of lay judges by the national Parliament, this alone did not raise ‘legitimate doubts’. As to administrative and disciplinary tribunals, these may include persons who are not professional judges or qualified lawyers. Civil servants may be members of administrative tribunals,787 and members of the armed forces may serve on military tribunals that p. 453try members of the armed forces for disciplinary788 or criminal offences.789 However, the participation of such members may raise issues under the independence or objective impartiality requirements.

b. An independent tribunal

By ‘independent’ is meant ‘independent of the executive and also of the parties’.790 In Mutu and Pechstein v Switzerland,791 the Court indicated the considerations it takes into account when assessing independence:

In order to establish whether a tribunal can be considered ‘independent,’ regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressure and the question whether the body presents an appearance of independence.

As to independence of the executive, clearly a decision taken by a government minister does not comply with Article 6(1).792 A tribunal that is otherwise separate from the executive is not ‘independent’ where it seeks and accepts as binding executive advice on the meaning of a treaty that it has to apply; in such a case it has surrendered its judicial function to the executive.793

As to the ‘manner of appointment’, ‘although the notion of separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court’s case-law’,794 appointment ‘by the executive or the legislature is permissible, provided that appointees are free from influence or pressure when carrying out their adjudicatory role’.795 For a judge’s independence to be challenged successfully by reference to his ‘manner of appointment’, it has to be shown that the practice of appointment ‘as a whole is unsatisfactory’ or that ‘at least the establishment of the particular court deciding a case was influenced by improper motives’,796 ie motives suggesting an attempt at influencing the outcome of the case.

With regard to their ‘term of office’, a short term of office has been accepted as permissible as far as members of administrative or disciplinary tribunals are concerned. In Campbell and Fell v UK,797 appointment for a term of three years as a member of a prison p. 454Board of Visitors acting as a disciplinary tribunal was sufficient, the Court being influenced by the fact that members were unpaid and that it might be hard to find candidates for any longer period. With regard to ordinary courts, appointment of judges may be for life or a fixed term,798 but a renewable four-year term has been questioned.799

As to ‘guarantees against outside pressure’, tribunal members must be protected from removal during their term of office, either by law or in practice.800 The appointment of a judge for a fixed term, so as to prevent dismissal at will, is a relevant factor,801 although apparently not in itself required. In Engel and Others v Netherlands,802 the military members of the Netherlands Supreme Military Court were removable by ministers at will. The Court would appear to have considered, without discussion, that their independence was not an issue in fact. In the Campbell and Fell case, the Court did not require any ‘formal recognition’ in law of the irremovability of a prison Board of Visitors member during his term of office; it was sufficient that this was ‘recognised in fact and that the other necessary guarantees are present’.803 In both of the Engel and Campbell and Fell cases, the possibility of removal by the executive without procedures for judicial review was not questioned.804 In contrast, in Henryk Urban and Ryszard Urban v Poland,805 the Court held that an assessor lacked the independence required because ‘she could have been removed by the Minister of Justice at any time during her term of office and that there were no adequate guarantees protecting her against the arbitrary exercise of that power by the Minister’.

As for other ‘guarantees against outside pressure’ are concerned, the Court requires that tribunal members are not subject to instructions from the executive, although here too it may be sufficient that this is the case in practice.806 In the Greek case,807 the extraordinary courts-martial during the regime of the colonels were found not to be independent partly because their jurisdiction was to be exercised ‘in accordance with decisions of the Minister of National Defence’. The secrecy of a tribunal’s deliberations may afford protection against outside pressures.808 Any authority given to the executive to grant an amnesty or a pardon must not be used so as to undermine the judicial function.809

Finally, the ‘appearance of independence’ requirement listed by the Court relates to the objective test that has been developed by the Court in respect to the requirements of both independence and impartiality. In Belilos v Switzerland,810 the municipal Police Board p. 455which fined the applicant for taking part in an unauthorized demonstration consisted of a police officer who was a lawyer appointed from police headquarters. Although he sat in his personal capacity, was not subject to orders, took a different oath from other policemen, and could not ‘in principle’ be dismissed during his four-year term, he was liable to be returned to other police duties and the ‘ordinary citizen will tend to see him as a member of the police force subordinate to his superiors and loyal to his colleagues’. In consequence, the applicant could ‘legitimately have doubts as to the independence and organisational impartiality of the Police Board’.

In the high-profile case of Oleksandr Volkov v Ukraine,811 there were ‘serious issues’ concerning the High Council of Justice, the body responsible for disciplining judges. The Minister of Justice and the Prosecutor General were ex officio members, and the ‘vast majority’ of the 20 members were ‘non-judicial staff appointed directly by the executive and the legislative authorities’, with just three judges. In addition, three non-judicial members had taken part in bringing the charges leading to the applicant’s dismissal from his post as a judge of the Supreme Court. The Chamber held that there were ‘structural deficiencies’ in the procedures and issues of personal bias in violation of the requirements of both independence and impartiality.

A breach of the ‘appearance of independence’ requirement was also found in Findlay v UK.812 There it was held that there were ‘fundamental flaws’ in the UK court-martial system because of the role of the convening military officer. This officer decided which charges should be brought and was otherwise closely linked with the prosecuting authorities. He also appointed the court-martial members, who were below him in rank and in some cases under his command, and he could dissolve the court-martial. Finally, the convening officer had to confirm the court-martial decision for it to be valid and could vary the sentence. In these circumstances, an outside observer could legitimately doubt the court-martial’s structural independence of the executive and its impartiality.813 Applying Findlay in a different context, in Daktaras v Lithuania,814 a legitimate doubt about possible outside pressure in breach of Article 6 was found when the President of the Criminal Division of the Supreme Court petitioned for the quashing of a court decision that was in favour of the applicant and then appointed the judges who would hear the petition.

The membership of military judges in ordinary criminal courts has been an issue in some Turkish cases. In Incal v Turkey,815 the applicant was convicted of a criminal offence of inciting racial hatred, by distributing the leaflets of a Kurdish political party, by a National Security Court composed of two civilian judges and a military judge. The Strasbourg Court held the participation of the military judge in a non-military state court was in breach of the requirements of independence and impartiality, since the civilian applicant ‘could legitimately fear that because one of the judges of the Izmir National Security Court was a military judge it might allow itself to be unduly influenced by considerations p. 456which had nothing to do with the nature of the case’.816 In Öcalan v Turkey,817 it was held that the objective requirement had not been satisfied even though, following the Incal case, the military member of the State Security Court that tried the applicant had been replaced by a third civilian judge before judgment was given. In a persuasive joint dissenting opinion, President Wildhaber and five other judges took the view that the fact that the verdict and sentence were decided by a court of wholly civilian membership was sufficient: to go further was ‘to take the “theory” of appearances very far’ and was neither ‘realistic’ nor ‘fair’.818

The Incal and Öcalan cases involved the trial of civilians for criminal offences by civil (ie non-military) courts that had a military judge as a member. In Martin v UK,819 the Court held that the prosecution of civilians for criminal offences before military courts is a matter of even greater concern under Article 6. Although their jurisdiction over civilians was not ‘absolutely’ excluded by the Convention, it would be consistent with Article 6 ‘only in very exceptional circumstances’. In particular, it should not extend to civilians unless there was a ‘clear and forseeable legal basis’ and there were ‘compelling reasons’. Moreover, the existence of such reasons ‘must be substantiated in each specific case’; it was ‘not sufficient for the law to allocate certain offences to military courts in abstracto’. In the Martin case, the applicant was a 17-year-old living with his family on a British military base in Germany, where his father was an army corporal. He was convicted in Germany of murder there by a British court-martial board. The Strasbourg Court found a breach of Article 6 on the basis that the court-martial board was not an independent and impartial tribunal under Findlay. While it did not find it necessary to decide whether there was also a breach of Article 6 because the applicant had been tried by a military court, it expressed ‘considerable doubts’ as to whether there were ‘compelling reasons’ for him to be so tried.

c. An impartial tribunal

‘Impartiality’ means the absence of prejudice or bias. To satisfy the requirement, the tribunal must comply with both a subjective and an objective test.820 However, ‘there is no watertight division between subjective and objective impartiality since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer … but may also go to the issue of his or her personal conviction’.821

With regard to the subjective test, there is a presumption that a judge is impartial, ‘until there is proof to the contrary’.822 Given this presumption and the need to prove actual bias, a breach of the subjective test is difficult to establish.823

p. 457The objective test is whether there is ‘any legitimate doubt’ about a judge’s impartiality. It is comparable to the English law doctrine that ‘justice must not only be done: it must also be seen to be done’. In this context, the Court emphasizes the importance of ‘appearances’.824 As the Court has stated, ‘[w] hat 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’.825 In applying the objective test, the opinion of the party to the case who is alleging partiality is ‘important but not decisive’; what is crucial is whether the doubt as to impartiality can be ‘objectively justified’.826 If there is a ‘legitimate doubt’ as to a judge’s impartiality, he or she must withdraw from the case.827 In this connection, the failure to disclose to the parties the identity of the judge(s) in the case may raise a ‘legitimate doubt’.828 It also been held in some, but not all, cases that the prosecuting authority must participate in the hearing to avoid a ‘legitimate doubt’ that the court will take on its role.829

The composition of the deciding body will not be an issue in the case of ordinary courts composed entirely of professional judges. However, the selection of a professional judge for a particular case from amongst the judiciary as a whole can give rise to questions of impartiality.830 In the case of tribunals not composed entirely of professional judges, the number and role of judges who are members is an indicator. Thus, ‘where at least half of the membership of a tribunal is composed of judges, including the chairman with a casting vote, this will be a strong indicator of impartiality’.831 There was a ‘legitimate doubt’ in terms of the membership of the deciding body in McGonnell v UK,832 where the Guernsey Royal Court rejected the applicant’s appeal against the refusal of his planning application by a development committee. The presiding judge in the applicant’s appeal was the Bailiff of Guernsey, who, as Deputy Bailiff, had earlier presided over the Guernsey legislature (the States of Deliberation) when it adopted the development plan under which the applicant’s planning application had been refused and which the Royal Court had to apply. As well as chairing the States of Deliberation, the Deputy Bailiff also had a casting vote in the event of a tie, although he was not called upon to exercise it in this case. The European Court held that the ‘mere fact’ that the Deputy Bailiff presided over the legislature when the plan was adopted was sufficient to raise a ‘legitimate doubt’ as to his impartiality when he later served as the sole judge on the law when the applicant’s planning appeal was rejected. More generally, the Court stated that ‘any direct involvement in the passage of legislation, or of executive rules, is likely to be sufficient to cast doubt upon the judicial impartiality of a person subsequently called on to determine a dispute’833 concerning its or their p. 458application. In considering such cases of overlapping roles, the Court has stated that the Convention does not suppose that contracting parties follow any particular constitutional theory concerning the separation of powers: the question is always whether there is a ‘legitimate doubt’ about impartiality (or independence) on the facts.834

Again, in terms of the separation of powers, the objective test will be infringed where the executive intervenes in a case in the courts with a view to influencing the outcome. In Sovtransavto Holding v Ukraine,835 while civil proceedings brought by the applicant Russian company in Ukraine were pending, the President of Ukraine drew the attention of the Supreme Arbitration Tribunal to the need to protect state interests. The Strasbourg Court held that, irrespective of whether it had influenced the outcome of the case, the President’s intervention gave rise to a ‘legitimate doubt’ as to the tribunal’s independence and impartiality. In Bochan v Ukraine,836 the applicant successfully challenged the objective impartiality not of the executive but of the respondent state’s Supreme Court, claiming that it had sought to influence the outcome of her case by reassigning it to a different regional court after judgments in her favour.

The Court has applied the objective test in many cases in which the trial judge in a criminal court has previously taken part in the proceedings at the pre-trial stage in a variety of different capacities. The Court has stated that ‘the mere fact that a judge has also made pre-trial decisions in the case cannot be taken as in itself justifying fears as to his impartiality. … What matters is the extent and nature of those decisions.’837 The Court has found a ‘legitimate doubt’ in a number of cases, including some involving long-established national practices. In Piersack v Belgium,838 the presiding trial court judge had earlier been the head of the section of the public prosecutor’s department that had investigated the applicant’s case and instituted proceedings against him. There was no evidence that the judge had actual knowledge of the investigation, but the Court held there had been a breach of the objective test. In De Cubber v Belgium,839 the Piersack case was extended to the situation where a judge had earlier acted as an investigating judge. The position is normally different where pre-trial decisions are taken by a judge who is not linked to the investigation or prosecution of the case. In Sainte-Marie v France,840 two members of an appeal court that sentenced the accused following his conviction on charges of possession of arms had earlier been members of a court that had refused his application for bail in criminal damage proceedings arising out of the same facts. Noting that the judges had played no part in p. 459the preparation of the case for trial, the Court stated that in such circumstances the ‘mere fact that such a judge has already taken pre-trial decisions in the case, including decisions relating to detention on remand, cannot in itself justify fears as to his impartiality’.841

In the ‘civil rights and obligations’ case of Mitrinovski v FYRM,842 there was a violation of the requirements of both subjective and objective impartiality when the President of the Supreme Court had first initiated proceedings for the dismissal of the applicant judge and then participated in the Judicial Council that dismissed him.

Another question is whether a judge can sit at more than one stage in the hearing of the merits of a case, or in both of two related cases. As to the former situation, in Ringeisen v Austria,843 the Court indicated that ‘it cannot be stated as a general rule resulting from the obligation to be impartial’ that a case must be re-heard, having been referred back by an appellate court, by a tribunal with a totally different membership from that of the first hearing. In contrast, it has been held that a judge should not take part in two different appellate stages of the same case.844 There was thus a lack of objective impartiality when most members of a court of cassation had sat in an earlier appeal hearing in the same case on the same facts.845 Clearly, there is also a breach of the requirement of objective impartiality where a judge is the presiding judge of an appeals tribunal that hears an appeal from his own decision.846

As to a judge sitting in two related cases, depending on the facts, the Court has sometimes held that a judge may participate in related civil and/or criminal cases concerning the applicant without this in itself raising a legitimate doubt as to his impartiality.847 However, in other cases, it has not.848 In Ferrantelli and Santangelo v Italy,849 there was a ‘legitimate doubt’ where the President of the Court of Appeal that heard the applicants’ appeal from their conviction for murder had earlier been the President of the Court of Appeal following the conviction of others for the same murder, when the Court of Appeal judgment in the earlier case contained passages referring to the applicants’ involvement in the murder and the Court of Appeal’s judgment in the applicants’ case had cited these passages.

The procedures applicable in common law jurisdictions in cases of criminal contempt in the face of the court were in issue in Kyprianou v Cyprus.850 There the applicant was a lawyer who had been convicted of criminal contempt in the face of the court for his p. 460offensive personal remarks and other behaviour during an exchange with the judges in a criminal case. After a short break in the proceedings, the same judges convicted him of contempt and sentenced him to five days’ imprisonment. Finding a breach of the objective impartiality requirement, the Strasbourg Court stated that the correct course would have been for the court to have referred the matter to the prosecuting authorities with a view to trial before a differently composed court. The Court also found a breach of the subjective impartiality requirement, on the basis of the statement made by the judges in their decision that they were ‘deeply insulted’; their generally ‘emphatic language’; the severe penalty imposed; and their statements in the exchanges with the applicant stating that he was guilty.

A number of cases have concerned robust remarks made by English judges in court about defendants in criminal cases. In one such case,851 in which the judge had indicated very clearly, but in the absence of the jury, that the accused was guilty and expressed his concern at the cost of the case for the legal aid fund, the application was declared inadmissible, the Commission emphasizing that the trial had to be considered as a whole. In a civil case852 in which a judge was alleged to have ‘made increasingly intemperate outbursts, which disclosed his hostility to the applicant’ in proceedings concerning access to his children, the Court found that although the judge had undoubtedly taken a strongly negative view of the applicant’s character, this did not in itself indicate bias and that, in any event, any such defect had been rectified on appeal by the Court of Appeal. In CG v UK,853 it was implied that interventions by a judge during the hearing of a case that interferes with a litigant’s freedom to plead his case may render the hearing unfair. In that case, the trial judge’s interruptions during the defence’s questioning of witnesses was ‘excessive and undesirable’ but were not, when the hearing was viewed as a whole, such as to render it unfair in breach of Article 6(1).

There may be a violation of the impartiality requirement when a judge makes extra-judicial pronouncements in the press or elsewhere that raise a ‘legitimate doubt’ about his or her impartiality. In Buscemi v Italy,854 the applicant had published a letter in the press complaining about the placing of his daughter in a children’s home by court order. The president of the court in pending child custody proceedings concerning the child responded with a letter in the press in terms that, in the Strasbourg Court’s view, ‘implied that he had already formed an unfavourable view of the applicant’s case’ before deciding it, thereby raising a ‘legitimate doubt’ as to his impartiality. In Chim and Przywieczerski v Poland,855 the judge had, while the applicant’s case was pending before him, made general comments favouring a harsher criminal policy in an interview with a journalist. The Court criticized the judge for making such comments, but held that it could not be inferred from them that he considered the applicant guilty. In contrast, in Morice v France,856 a judge sitting in the Court of Cassation when the applicant’s conviction for defaming another judge was upheld had earlier spoken in defence of the defamed judge at an assembly of p. 461judges. This caused the applicant’s concerns to be ‘objectively justified’; although the judge was only one of ten Court of Cassation judges, it could not be known how influential his participation had been.

Breaches of the objective impartiality test may arise where the judge has acted as a lawyer for the applicant’s opponent in other proceedings. In Wettstein v Switzerland,857 there was a breach of the objective test when the part-time judge in the applicant’s civil case was at the same time acting as a lawyer for the applicant’s opponent in other pending civil litigation. Although the two cases were unrelated on their facts, the applicant had a ‘legitimate fear’ that the judge might ‘continue to see in him the opposing side’. In contrast, in Walston v Norway,858 there was no such breach where the judge had acted as the lawyer for the applicant’s opponent in an earlier case.

The objective test may also be infringed where the judge has a personal interest in the case. A financial interest may disqualify a judge as not being impartial,859 although there will be no breach of Article 6(1) if the interest is disclosed and the applicant is given an opportunity to object.860 Non-financial interests are also relevant. Thus, in Demicoli v Malta,861 the Maltese House of Representatives that tried the applicant for breach of parliamentary privilege was not impartial because two of its members who participated in the proceedings were the Members of Parliament who were criticized in the article that was the subject of the alleged offence.

The objective test was not satisfied in Langborger v Sweden,862 which concerned lay assessors who were members of a Housing and Tenancy Court, whose function was to adjudicate upon the continuation of a clause in a tenancy agreement; they were nominated by, and had close links with, organizations that had an interest in the removal of the clause. It did not matter that the tribunal was composed of two judges as well as the two lay assessors, with the presiding judge having the casting vote. The Langborger case may be contrasted with the earlier case of Le Compte, Van Leuven and De Meyere v Belgium,863 in which the medical members of a professional tribunal had ‘interests very close to’ those of one of the doctors being disciplined.864 This fact was counterbalanced by the presence of an equal number of judges, one of whom had the casting vote, so that there was no breach of Article 6(1).865

Personal links between a judge and a party to the case have been an issue in a variety of other particular contexts. In Micallef v Malta,866 there was a lack of objective impartiality p. 462when one of the judges hearing an appeal was related (as uncle and brother) to advocates appearing for the applicant’s opponent. The fact that a judge is a freemason does not per se raise doubts as to his impartiality in a case in which a party to the case or a witness is also a freemason; the position may be different if the judge has personal knowledge of the freemason or his lodge.867 In contrast, there was a ‘legitimate doubt’ where the judge was also a professor employed by the university that was the other party to the case,868 and where a judge had threatened a reprisal after his son had been expelled from the school connected with the case.869 The fact that a judge in a divorce case had a conversation with the applicant’s wife immediately after the hearing did not by itself raise a ‘legitimate doubt’.870 However, in Belukha v Ukraine,871 there was a lack of impartiality when the employer against whom the applicant was claiming supplied the trial court with goods and services.

The requirement of impartiality applies to juries.872 Whether a jury member’s personal link with a party to the case or to a witness raises a ‘legitimate doubt’ depends in each case on ‘whether the familiarity in question is of such a nature and degree as o indicate a lack of impartiality’. There was such a doubt in Kristiansen v Norway,873 when the victim in the applicant’s trial for attempted rape had been in the same school class as a jury member’s foster child and been to birthday parties at her house. In contrast, there was no ‘legitimate doubt’ in Simsek v UK.874 There a jury member was the sister-in-law of a prison officer, who worked in the house block of 180 prisoners in which the applicant had been detained on remand, but who had not escorted or worked with him. In contrast, in Holm v Sweden,875 a breach of Article 6(1) was found because of the links between members of a jury and the defendants in an unsuccessful private prosecution brought by the applicant for libel in a book commenting on right-wing political parties. A majority of the jury were active members of a political party that owned the first defendant (the publisher) and that had been advised by the second defendant (the author), thereby giving rise to a ‘legitimate doubt’ as to the jury members’ independence and impartiality. A violation was also found in Hanif and Khan v UK,876 when a police officer was a jury member in a case in which the applicant’s defence depended to a significant extent upon challenging police evidence, including that of a police officer with which the police officer jury member had worked. In contrast, there was no breach of the requirement of impartiality in Szypusz v UK,877 when p. 463a police officer joined the jury to operate a video machine; although the police officer had been involved in the investigation of the case, the judge had made it clear that he should not talk with the jury, just show the video.

The question of impartiality has also arisen in cases alleging racial discrimination within juries. In Remli v France,878 a certified statement by a third party was presented by the defence to a criminal court that was trying the applicant and another accused, who were both of North African origin. The statement indicated that the author had overheard one of the jurors saying on entering the courtroom before the trial, ‘What’s more, I’m a racist.’ Without considering its merits, the court refused a defence application that it should take formal note of the statement because it had no jurisdiction to take note of events occurring out of its presence. The trial proceeded, and the applicant and his co-defendant were convicted of homicide. The Strasbourg Court held, by five votes to four, that the decision of the court to refuse the application without considering its substance raised a ‘legitimate doubt’ as to the court’s impartiality.

In contrast, no breach was found in Gregory v UK,879 in which the applicant, who was black, was convicted of robbery by a jury, by ten votes to two, and sentenced to six years’ imprisonment. While the jury was deliberating, a note was passed by the jury to the judge stating: ‘Jury showing racial overtones. One member to be excused.’ After consulting with both counsel, the judge gave a ‘firmly worded’ and ‘forceful’ redirection to the jury instructing them to put out of their minds ‘any thoughts of prejudice of one form or another’. The Strasbourg Court held, by eight votes to one, that, in doing so, the judge had taken sufficient steps to ‘dispel any objectively held fears or misgivings about the impartiality of the jury’.

The Gregory case was distinguished in Sander v UK,880 in which the applicant, who was Asian, was convicted by a jury of conspiracy to defraud and sentenced to five years’ imprisonment. During the hearing, a jury member passed a note to an usher stating that at least two jury members had been making ‘openly racist remarks and jokes’ and that he feared that they were going to convict the applicant because he was Asian. Rejecting defence counsel’s application to dismiss the jury on grounds of bias, the judge told the jury of the note, reminded them of their oath, and asked them to consider overnight whether they could decide the case without prejudice. The following morning, the judge was given a note signed by all of the jurors refuting the allegation and stating that they would reach a verdict according to the evidence and without prejudice. A second letter from a juror stated that, although he might have made racist jokes, he apologized for any offence and was not racially biased. The Strasbourg Court held, by four votes to three, that there had been a breach of the requirement of objective impartiality.881 The majority distinguished the Gregory case on the basis that in that case there had been no admission by a juror of racist comments; the complaint was vague and imprecise and its author unknown; and defence counsel had insisted throughout that the jury should be dismissed.882 On the facts in Sander, the judge should, in the majority’s view, have reacted in a ‘more robust manner than merely seeking vague assurances’, probably by dismissing the jury. Judge Bratza, in a dissenting opinion joined by Judges Costa and Fuhrmann, questioned the weight of the p. 464points of distinction between Gregory and Sander on their facts and considered that the judgment of an experienced judge as to what was necessary to dispel the perceived doubts as to racial bias should have been respected.

More generally, it is clear is that a jury trial is not an element of the right to a ‘fair hearing’.883 Despite being highly prized in common law jurisdictions, the jury’s lack of general use in European legal systems made this inevitable in view of the consensus approach to the interpretation of the Convention.884 Where juries are used, in criminal or civil cases, they must comply with the requirements of Article 6. This is particularly true of the requirement that a tribunal be ‘impartial’.

Impartiality may also be prejudiced in violation of Article 6(1) by media coverage of a case. In Paulikas v Lithuania,885 the Court acknowledged that ‘a virulent media campaign can adversely affect the fairness of a trial and involve the state’s responsibility’—a responsibility which follows from the state’s obligation to safeguard impartiality under Article 6(1) and, in criminal cases, may violate the presumption of innocence under Article 6(2). The following summary of the Court’s jurisprudence is mostly derived from judgments in criminal cases, but it applies to ‘civil rights and obligations’ cases too.886 In the Paulikas case, the Court stated that while press coverage of current events is an exercise of freedom of expression in Article 10 of the Convention, ‘that cannot mean that any media comment whatsoever’ is permitted. The Court’s approach is ‘to examine whether there are sufficient safeguards to ensure that the proceedings as a whole are fair’ and ‘to require cogent evidence that concerns about the impartiality of the judges are objectively justified before any breach of Article 6(1) can be found.’ In the Paulikas case, the Court identified ‘some of the factors relevant to its assessment of the impact of a media campaign on the fairness of a trial’. These include ‘the time which has elapsed between the press campaign and the commencement of the trial, and notably the determination of the trial court’s composition; whether the impugned publications were attributable to, or informed by, the authorities;887 and whether the publications influenced the judges and thus prejudiced the outcome of the proceedings’. In Beggs v UK,888 the Court added to the list, for jury trial cases, the ‘content of any directions given to the jury’. In non-jury trial cases, the fact that a case has been decided by professional judges has weighed against a finding of partiality.889

d.p. 465 A tribunal established by law

Article 6(1) requires that the tribunal be ‘established by law’, a requirement that ‘reflects the principle of the rule of law’.890 The intention is that, with a view to ensuring its independence, ‘the judicial organisation in a democratic society[does] not depend on the discretion of the Executive, but that it [is]regulated by law emanating from Parliament’.891 This does not mean that every detail of the court system must be spelt out in legislation: provided that the basic rules concerning its organization and jurisdiction are set out by legislation, particular matters may be left to the executive acting by way of delegated legislation and subject to judicial review to prevent illegal or arbitrary action.892 The absence of any basis in law for practices followed by a court may mean that it is not established by law.893

It is for the constitution and the legislature, not the judiciary, to provide for the organization of the judicial system and the jurisdiction of the courts. In Coëme and Others v Belgium,894 the constitution gave the Court of Cassation, not the ordinary criminal courts, jurisdiction to try government ministers for certain criminal offences. When prosecutions were brought against both ministers and non-ministers for offences of fraud, the Court of Cassation decided to try all of the accused together because of the connection between the offences, even though it had no legislative authority to try the non-ministers. The Strasbourg Court held that because the ‘connection rule’ that the Court of Cassation applied to join the cases was its own rule, not one provided by legislation, the Court of Cassation was not ‘established by law’ vis-à-vis the applicant non-ministers. Similarly, there was a violation in Sokurenko and Strygun v Ukraine,895 when the Supreme Court upheld a lower court decision when it had no authority in law to do so. Likewise, a judge must not be disqualified by law from sitting in a case to which they have been allocated.896

Article 6(1) does not prohibit the establishment of special courts or tribunals to deal with specific subject matter which can be appropriately administered outside the ordinary court system.897 They fall with the concept of a ‘tribunal’ in the ‘substance sense’ of having a ‘judicial function’.898 The courts in the Turkish Republic of Northern Cyprus were ‘established by law’ even though the laws which provided for them were not those of an internationally recognized state.899

In Gud~mundur Andri Άstrad~sson v Iceland,900 the Grand Chamber held that irregularities in the procedures for the appointment of judges to their office may violate the ‘tribunal established by law’ requirement. A three-step test applies. First, there must be a ‘manifest p. 466breach’ of the domestic law. Second, ‘only those breaches that relate to the fundamental rules of the procedure for appointing judges—that is, breaches that affect the essence of the right to a “tribunal established by law”—are likely to result in a violation of that right’. In particular, the breach must create ‘a real risk that the other organs of government, in particular the executive, [may exercise] undue discretion undermining the integrity of the appointment process’. Breaches ‘of a purely technical nature that have no bearing on the legitimacy of the appointment process’ do not lead to a violation; a breach such as ‘the appointment of a person who does not fulfill the relevant eligibility criteria’ does. Third, any review conducted by national courts of the legal consequences of a breach of the domestic rules on judicial appointments ‘plays a significant role’. In particular, ‘[w]here the national courts have duly assessed the facts and the complaints in the light of the Convention standards, have adequately weighed in the balance the competing interests at stake and have drawn the necessary conclusions, the Court would need strong reasons to substitute its assessment for that of the national courts’. The Grand Chamber added that there is no time limit beyond which an irregularity may not be challenged, but ‘with the passage of time, the preservation of legal certainty will carry increasing weight’ and evidential difficulties and statutory limitations come into play.

In the Gud~mundur Andri Andri Άstrad~sson case, the applicant claimed that there had been irregularities in the appointment of one of the Court of Appeal judges—AE—who had rejected the applicant’s appeal against conviction for driving offences. The procedure by which AE was appointed was a new one aimed at limiting the influence of the executive in the appointment of judges and strengthening the independence of the judiciary. By this procedure, an independent Evaluation Committee submitted to the Minister of Justice a list of recommended candidates for appointment to the Court of Appeal. In the present case, the Minister nominated AE in place of one of the candidates on the Committee’s list whose names she sent on to Parliament, which then approved the appointment of AE by vote. The Supreme Court of Iceland decided that the procedure for the appointment of judges had not been complied with. The Minister had not, as required by law, evaluated the facts or given reasons for her decision to deviate from the Committee’s list and Parliament had not complied with the statutory voting procedure. Nonetheless, following its settled practice in cases of procedurally invalid judicial appointments, the Supreme Court did not invalidate AE’s appointment. Applying its three-step test, the Grand Chamber held that the right to a ‘tribunal established by law’ had been violated. First, finding no reason to question the Supreme Court’s decision, it concluded that there had been a ‘manifest breach of the domestic law’. Second, there had been a ‘grave breach of a fundamental rule of the procedure for appointing judges’.901 In this connection, the Court stated that the ‘uncertainty surrounding the Minister’s motives raises serious doubts of irregular interference by the Minister in the judiciary and thus taints the legitimacy of the whole procedure’.902 As to the third step, the Grand Chamber found ‘strong reasons’ not to accept the outcome (non-invalidation) of the Supreme Court’s review of the applicant’s case as that Court had not ‘duly assessed’ compliance with the ‘tribunal established by law’ requirement.903

The Άstrad~sson test has been applied in a series of Polish cases in which procedures for the reform of the national judiciary have been found not to comply with the ‘tribunal p. 467established by law’ requirement.904 In Xero Flor w Polsce sp.z.o. v Poland,905 the Strasbourg Court first determined that contraventions of domestic law in the election of certain Constitutional Court judges identified by the Polish Constitutional Court were ‘manifest breaches’ of that law. In particular, the President of Poland had refused to swear in three judges who had been lawfully elected by the old Parliament; subsequently, the new Parliament had elected three different judges, including a judge in the applicant’s case, to the seats already lawfully filled. Also, the legislature and the executive had failed to abide by Constitutional Court judgments on the validity of the election of the three judges and the Prime Minister had illegal refused to publish those judgments. Second, the Court found that these contraventions ‘amounted to external influence on the Constitutional Court’ and were of such gravity as to impair the legitimacy of the election process and undermine the very essence of the right to a ‘tribunal established by law’.906 In Reczkowicz v Poland,907 the applicant was a barrister who had been disciplined by the Supreme Court’s Disciplinary Chamber. The chamber was composed of judges recommended by the National Council of the Judiciary. Following a 2017 legislative amendment, the National Council’s judicial members (who were the majority of its members) had been elected by Parliament, not by the judiciary as had previously been the practice. Applying the first step in the Άstrad~sson test, the Strasbourg Court held that there was a ‘manifest breach’ of domestic law, following the Supreme Court’s view that under the amended appointment procedure the composition of the National Council was such that it did not provide sufficient guarantees of independence from the legislative and executive authorities for the Council to perform its ‘constitutional duty’ to safeguard the independence of courts and judges.908 Applying the second step of the test, the Court found that the breach, ‘arising from non-compliance with the principle of the separation of powers and the independence of the judiciary, inherently tarnished the impugned appointment procedure.’ Although the decision in the Reczkowicz case was limited to the particular applicant’s claims, the Strasbourg Court’s reasoning has potentially much wider significance as the recommendations of the National Council of the Judiciary are required for the appointment of judges in other contexts also.909

In other judicial appointment cases that might arise in which, in contrast with the Polish cases mentioned earlier, the procedure that is followed is lawful but nonetheless might raise issues of undue influence on the part of the executive and/or legislature on the judiciary contrary to the separation of powers, the Article 6(1) requirement of an ‘independent’ tribunal may apply rather than the requirement that cases be decided by a ‘tribunal established by law’.

VI.p. 468 The Application of Article 6(1) to Appeal Proceedings

Article 6(1) does not guarantee a right of appeal from a decision by a court complying with Article 6 in either criminal or ‘civil rights and obligations’ cases.910 If, however, a state in its discretion provides a right of appeal, proceedings before the appellate court are governed by Article 6(1).911 The extent to which Article 6(1) applies to appeal proceedings, however, depends upon the nature of the particular proceedings, including the function of the appeal court and the relationship of proceedings before it with those earlier in the case. For example, the requirement of a public hearing may not apply fully where the court hears an appeal on points of law only and where a public hearing has taken place on the merits in the trial court. The exercise of a right of appeal may be subjected to reasonable time limits.912

Where the initial determination of ‘civil rights’ within the meaning of Article 6 is made by an administrative or disciplinary tribunal or other body which does not comply with it, Article 6 is satisfied so long as its proceedings ‘are subject to review by a judicial body that has full jurisdiction’, on the law and the facts, that does comply with it.913 This dispensation is a proper recognition of the ‘demands of flexibility and efficiency’914 that permit the use of such bodies.

As the Court established in De Cubber v Belgium,915 the same is not true in respect of ‘courts of the classic kind’, ie courts that are ‘integrated within the standard judicial machinery of the country’. In the case of such courts, Article 6 must be fully complied with both at the trial court stage and on any appeal. The fact that allowance may be made for special professional or disciplinary bodies ‘cannot justify reducing the requirements of Article 6(1) in its traditional and natural sphere of application’. There is, however, a limit to this properly stringent rule. In a case in which the breach of Article 6 concerns the conduct of a first-instance court, it may be that the appeal court can ‘make reparation’ for the breach, in which case Article 6 will be complied with. For example, in Adolf v Austria,916 there was no breach of Article 6 when the appeal court corrected the impression given by the trial court that the accused was considered by it to be guilty, in breach of the presumption of innocence. Likewise, in Edwards v UK,917 there was no breach of Article 6 when the implications of the police’s failure to disclose relevant information to the defence at the trial were examined by the Court of Appeal, which was competent to overturn the conviction on the basis of the evidence of non-disclosure. However, where the earlier defect is or cannot be remedied on appeal, the position is different. This is particularly likely to be true where the defect concerns the organization of the trial court, rather than its conduct of the trial. Thus, in Findlay v UK,918 the role of the convening p. 469officer in military court-martial proceedings meant that the proceedings were neither independent nor impartial, which was a defect that could not be corrected by later review proceedings: as the Court stated, the applicant was entitled ‘to a first instance tribunal which fully met the requirements of Article 6(1)’.

4. Article 6(2): The Right to be Presumed Innocent in Criminal Cases

Article 6(2) provides that a person ‘charged with a criminal offence shall be presumed innocent until proved guilty according to law’.919 It guarantees a right that is fundamental to both common law and, despite legend in the UK to the contrary,920 civil law systems of criminal justice. Article 6(2) means, in common law terms, that the general burden of proof must lie with the prosecution,921 or, in terms more appropriate for civil law systems, that the court must find for the accused in a case of doubt.922

Article 6(2) extends only to persons who are or have been subject to a ‘criminal charge’.923 Prejudicial statements at the pre-trial stage about such a person are controlled by Article 6(2).924 It does not benefit a person who is under suspicion of having committed an offence, but is not yet subject to a criminal charge.925 However, in Mulosmani v Albania,926 a prejudicial public statement in the media immediately following a murder but a year before the applicant was charged was, exceptionally, considered to be within Article 6(2) because of its ‘continued impact’. Although extradition decisions do not involve the determination of a criminal charge, they ‘may raise an issue under Article 6 § 2 if supporting reasoning [for the decision to extradite] which cannot be dissociated from the operative provisions amounts in substance to the determination of the person’s guilt’ and are such that they could prejudice the assessment of the facts by the courts in the receiving state.927

Article 6 does not apply to practices in the course of a criminal investigation such as the conduct of breath, blood, or urine tests,928 or medical examinations,929 or an order to produce documents.930 By analogy, Article 6(2) also does not apply to fingerprinting and searches of the person or property. Restrictions on pre-trial detention do not raise an issue under Article 6(2).931 Nor does it extend to the closure of a shop as a provisional measure or the offer of an ‘out-of-court’ fine.932 However, a conviction of a person subject to a criminal charge for an offence of failing to provide information may in some contexts be in breach of the presumption of innocence, as well as freedom from self-incrimination.933

p. 470Article 6(2) continues to apply to the end of any appeal proceedings against conviction, so that, where an appeal against conviction is pending, remarks that may influence the appeal hearing are subject to it.934 It does not apply to the consideration of a convicted person’s character and conduct during his sentencing, as that person is then no longer subject to a ‘charge’.935 However, Article 6(2) does apply to accusations about a convicted person that are made during sentencing proceedings if they are of such a nature and degree as to amount to the bringing of a new criminal charge.936 Article 6(2) was held to apply and to have been infringed when a court revoked the suspension of the applicant’s sentence for an earlier offence, because of the court’s stated ‘certainty’ that the applicant was guilty of another offence for which he had not been convicted.937 Article 6(2) has been held to apply to proceedings concerning the discontinuance of a case against an accused938 or the award of costs or compensation following discontinuance939 or acquittal:940 the test is whether they can be seen as sufficiently closely linked with the determination of the criminal charge. Similarly, statements in separate court proceedings related to an acquittal are subject to Article 6(2).941 The posthumous conviction of an accused who has died before their trial is a violation of the presumption of innocence.942

There is a close link between the presumption of innocence and freedom from self-incrimination. In Murray (John) v UK,943 the accused’s right to remain silent was limited to the extent that inferences could be (and were) drawn by the trial court from the accused’s failure to explain his presence at the scene of the crime and to give evidence in court. The Strasbourg Court held that the drawing of such inferences did not on the facts have ‘the effect of shifting the burden of proof from the prosecution to the defence so as to infringe the principle of the presumption of innocence’. In contrast, there was such a shifting of the burden of proof in breach of Article 6(2) in Telfner v Austria,944 when the accused, who refused to give evidence to the police or at the trial, was convicted of a road traffic accident offence on the basis that he was the driver of the car involved, when there was no direct evidence to show that he was. The conviction was based on the facts that, although registered in his mother’s name, the accused was the main user of the car and that he had not been home that night, which facts required him, the national court determined, to show that he was not the driver. The Strasbourg Court distinguished the Murray case p. 471concerning Article 6(2) because in the Telfner case there was no prima facie case against the accused that justified the drawing of ‘common-sense’ inferences in the absence of an explanation by the accused.

Although the burden of proof must generally fall upon the prosecution, it may be transferred to the accused when he is seeking to establish a defence.945 Article 6(3)(2) does not prohibit presumptions of fact or of law that may operate against the accused. However, it does require that states confine such presumptions ‘within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence’.946 Such ‘reasonable limits’ require that the presumption is not ‘irrebutable’; the accused must have a ‘means of defence’.947

In Salabiaku v France, the applicant had been convicted of the customs offence of smuggling prohibited goods. The applicant had collected and taken through the ‘green’ customs exit at Paris airport a trunk that contained prohibited drugs, of which he claimed to have no knowledge. Under French law, a person who was in possession of prohibited goods in these circumstances was deemed liable for the offence of smuggling them. The Court found that, as applied to the applicant’s case, this presumption was not contrary to Article 6(2). Under French law, the applicant had a defence of force majeure, by which it was open to him to prove that it was impossible for him to have known of the contents of the trunk. The Court held that, having regard to the availability of this defence, the Customs Code was not applied by the courts in an unreasonable manner which conflicted with Article 6(2), despite what was ‘at stake’ (imprisonment and a substantial fine) for the applicant. In other cases, it has been held that rebuttable presumptions, including that an accused was living knowingly off the earnings of a prostitute who was proved to be living with him or under his control,948 that a company director was guilty of an offence committed by the company,949 and that a dog was of a dangerous breed,950 were not inconsistent with Article 6(2). However, a statutory presumption that a ruling in a criminal case in which the applicant had been the complainant that there was no case to answer automatically meant that in later criminal proceedings against the complainant for malicious prosecution the allegations should be treated as false was contrary to the presumption of innocence.951

As the Salabiaku case also decided, Article 6(2) does not prohibit offences of strict liability, which are a common feature of the criminal law of the Convention parties. An offence may thus be committed, consistently with Article 6(2), on the basis that a certain act has been committed, without it being necessary to prove mens rea. Provided a state respects the rights protected by the Convention, it is free to establish elements of the offence in its discretion, including any requirement of mens rea.

Various claims that the presumption of innocence has been infringed in the conduct of the trial other than in respect of the operation of the rules of evidence have been presented. Having the accused appear handcuffed in front of the jury was consistent with Article 6(2) as a necessary security measure.952 But requiring convicted persons to wear their prison uniform when appearing in court on appeal was a breach of Article 6(2) as reinforcing p. 472the public impression of their guilt.953 The arrest of a witness in the courtroom for perjury immediately after giving evidence for the accused was permissible,954 as were the retrial of the accused before a court that had earlier considered his application for bail955 and the detention of a convicted person pending his appeal.956 A procedure by which a person may plead guilty to an offence, with the proceedings being limited to sentencing, is not in breach of Article 6(2), provided that pressure has not been brought improperly to bear upon the accused to obtain the guilty plea.957

The Court’s jurisprudence considered thus far has concerned the presumption of innocence as a procedural guarantee that applies in the context of a criminal prosecution. It also has a second dimension, which is to protect individuals who have been acquitted of a criminal charge, or against whom criminal proceedings have been discontinued, from being treated by courts or public officials ‘as though they are in fact guilty of the offence charged’. This second dimension counters the risk that the fair trial guarantees in Article 6 may be ‘theoretical and illusory’ only and serves to protect the individual’s reputation.958 The Court first spelt out this second dimension in Minelli v Switzerland.959 In that case, a private prosecution against the applicant was discontinued because it had become statute-barred. A Swiss court thereupon ordered the applicant to pay part of the private prosecutor’s and court costs on the basis that the applicant would ‘very probably’ have been convicted had the case gone to trial. The Strasbourg Court held that Article 6(2) had been infringed. Although there was no formal decision as to guilt, the court’s judgment as to costs ‘showed that it was satisfied’ that the accused was guilty, and this was sufficient.960

The Court has applied the rule in the Minelli case in the context of subsequent proceedings where there is a link with criminal proceedings which have ended with a result other than a conviction.961 These include cases in which remarks have been made about individuals who have been acquitted or against whom criminal proceedings have been discontinued where such individuals: (i) have claimed defence costs962 or claimed compensation for their detention on remand963 or for wrongful conviction964 or as victims of crime;965 or (ii) have been the subject of disciplinary proceedings966 or have been prosecuted for an administrative offence having been acquitted by a criminal offence on the same facts.967 p. 473In cases of this kind, ‘much will depend on the nature and context of the proceedings in which the impugned decision was adopted’.968

The Court has drawn a distinction between statements by courts indicating guilt and statements by them that merely voice suspicion of guilt. The latter have been held permissible where no final decision in the accused’s trial of guilt has been taken. Thus, the voicing just of suspicion by a court when ruling on claims for compensation for detention on remand and/or costs in cases in which the prosecution has been discontinued,969 or when ruling on claims for provisional measures,970 is not a breach of Article 6(2). The position is different in some cases following acquittal. Court statements voicing continuing suspicion971 after the accused has been acquitted have been held to be contrary to Article 6(2).972 But statements of suspicion by a court following acquittal in proceedings for compensation for detention on remand when there was reasonable suspicion at the time of the arrest have not.973 In all such cases, the language used by the decision maker will be of critical importance when assessing whether Article 6(2) has been complied with.974

The cases just discussed concern statements made following an acquittal or discontinuance of the case in judicial decisions that directly concern the applicant. Article 6(2) may also be infringed in criminal proceedings against another person when the court refers in its judgment to the involvement of the applicant in the same offence.975 In addition, although civil proceedings are not directly subject to it, Article 6(2) requires that a civil court act in accordance with an acquittal of an accused who is later party to proceeding before it arising out of the same facts.976 But the mere suspension of civil proceedings pending the outcome of a criminal case is not a breach.977

These cases concern statements made in judicial decisions. Article 6(2) has also been applied to statements made by judges while a case is pending, whether in or outside court proceedings. Thus, in Kyprianou v Cyprus,978 the trial court stated in the course of exchanges with defence counsel during a court hearing that his conduct in court amounted to criminal contempt. After a short adjournment, the court sentenced counsel to five days’ imprisonment without giving him an opportunity to defend himself on the charge of contempt. The Strasbourg Court held that the statements made by the court were, inter alia, a breach of the presumption of innocence. As to statements made outside court p. 474proceedings, in Lavents v Latvia,979 there was a breach of both Article 6(1) (tribunal not impartial) and Article 6(2) when the trial judge stated in press interviews which she gave during the trial that she was not sure whether to convict the accused on all or only some counts and expressed her astonishment that he totally denied his guilt. As well as statements by judges, prejudicial comments by counsel or witnesses may raise a question under Article 6(2) if the court’s failure to control it shows judicial bias.980 With regard to these cases, although it is possible to see a presumption of innocence element in them, it might be simpler and more natural to treat them just under the ‘impartial tribunal’ requirement in Article 6(1).981

The approach in the Minelli case applies not only to judicial statements, but also to statements by public officials. Thus, a breach of Article 6(2) was found in Butkevičius v Lithuania982 when statements by the Chairman of the Lithuanian Parliament were made to the press shortly after the applicant, who was the Lithuanian Minister of Defence, had been apprehended in a hotel lobby accepting an envelope full of US dollars. The Chairman said that he ‘had no doubt’ that the applicant, who was later convicted of attempting to obtain property by deception, had accepted a bribe and that he was a ‘bribe-taker’. In contrast, in Daktaras v Lithuania,983 the Court found no breach of Article 6(2) when a prosecutor indicated that the applicant’s ‘guilt had been proven’ in connection with his decision to refuse an application for discontinuance of the prosecution. The Strasbourg Court stated that whether a statement by a public official violated the presumption of innocence depended on the ‘context’ in which it was made. It drew a distinction between public statements made in a context, such as a press conference,984 that was separate from the court proceedings concerning the applicant, and statements, such as that by a prosecutor, that were a part of those proceedings and noted that in this case the prosecutor could be taken to have meant only that there was sufficient evidence to go to trial. In Rywin v Poland,985 the terms of reference and findings of a parliamentary committee inquiry into public corruption allegations that received much media attention and referred to the applicant as an ‘agent’ of those involved (without stating that he was guilty), were held, by four votes to three, not to violate the applicant’s presumption of innocence in respect of his pending prosecution for fraud.

In a different kind of case, the dismissal of a customs officer from his employment in the civil service because he was in pre-trial detention, but not yet convicted, was not in itself (no statements) a violation of the presumption of innocence.986 As to the meaning p. 475of public official in this context, it was given a broad meaning in Kouzmin v Russia987 in which Article 6(2) was held to be applicable when the applicant was said on television to be guilty of rape by a leading politician during his campaign for election as a governor of a republic. In contrast, in Mulosmani v Albania,988 a public statement made by a chairman of an opposition political party accusing the applicant of the murder of an MP was held to be from a private person who held no public office.

As well as statements by judges or other public officials, a ‘virulent media campaign’ may raise issues under Article 6(2). This may be so in terms of both the impartiality of the tribunal and the presumption of innocence, the latter coming into play particularly where the campaign has been prompted or facilitated by a public official.989 A violation of the presumption of innocence by a lower court may be made good by a higher court on appeal.990 It may be, however, that ‘the failure of the lower court to observe the principle of presumption of innocence has so distorted the general course of proceedings’ that this is not possible.991

5. Article 6(3): Further Guarantees in Criminal Cases

I. Article 6(3): Generally

Article 6(3) guarantees certain rights that are necessary to the preparation and conduct of the defence and to ensure that the accused is able to defend himself on equal terms with the prosecution. The rights listed are ‘minimum rights’. As noted,992 the Court has sometimes regarded them as separate rights, with non-compliance with one of them being by itself a violation of the Convention. More commonly they have instead come to be seen as elements of the general concept of the right to a fair hearing in Article 6(1). On this second understanding, the Court decides a case on the basis of Article 6(1) and the relevant specific right in Article 6(3) or of Article 6(1) alone, or just of Article 6 in general terms or in the light of the ‘proceedings as a whole’.

The rights in Article 6(3) are guaranteed to persons ‘charged with a criminal offence’. This phrase has the same autonomous Convention meaning as it has elsewhere in Article 6.993 Whether Article 6(3) applies to the pre-trial stage of criminal proceedings was formerly a matter of dispute, with a number of civil law contracting parties questioning whether it did. This argument was expressly rejected by the Court in Imbrioscia v Switzerland.994 Article 6(3) applies to appeal proceedings, although when assessing compliance with its requirements at the appellate level, account must be taken of the special features of the appeal proceedings concerned and the part they play in the case as a whole.995

II.p. 476 Article 6(3)(a): The Right to be Informed of the Accusation

Article 6(3)(a) requires that a person ‘charged with a criminal offence’ ‘be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him’. It recognises the ‘crucial role’ that this information play in the criminal process.996 Article 6(3)(a) overlaps with Article 5(2), which provides a similarly worded guarantee for persons detained pending trial.997 Although both provisions respond to the legitimate claim of an individual to know why the state has acted against him, the purpose of the two guarantees is essentially different. Whereas Article 5(2) seeks to assist the arrested person in challenging his detention, Article 6(3)(a) is intended to give the accused person the information he needs to answer the accusation against him. For this reason, the information required by Article 6(3)(a) is to be understood in the light of the accused’s right to prepare his defence that is guaranteed in Article 6(3)(b).998

The accused must be informed of the ‘nature and cause of the accusation against him’. The ‘nature’ of the accusation is the legal classification of the offence with which the accused is charged.999 This may be altered as the case proceeds provided that the accused is given the opportunity to prepare his defence to the new charge in ‘a practical and effective manner and, in particular, in good time’.1000 Article 6(3)(a) was infringed when a court of appeal convicted the applicants of a different offence from the one with which they had been charged and of which they learnt only when the court of appeal delivered its judgment.1001 In such a case, the appellate court could, the Court has said, adjourn the hearing for further argument or allow the applicant to make written submissions.1002 However, there was no breach when the accused could reasonably have anticipated that an ‘aggravating circumstance’ well known to all but that was not formally a part of the charge might be taken into account in sentencing on appeal.1003

The ‘cause’ of the accusation consists of the ‘acts he is alleged to have committed and on which the accusation is based’.1004 What needs to be communicated to the accused will depend upon what he can be taken to know from the questioning he has undergone and from the other circumstances of the case.1005 The accused must take advantage of what opportunities there are to learn of the accusation against him; if a prisoner fails to attend a hearing at which he could have obtained further information, this will count against his claim of a breach of Article 6(3)(a).1006

The requirement in Article 6(3)(a) that a person be given the required information ‘promptly’ has received little attention in the Court’s judgments; the focus, instead, has been on the requirement in Article 6(3)(b) that the accused have ‘adequate time’ to prepare p. 477their defence. In C v Italy,1007 the required information was given sufficiently ‘promptly’ to the applicant when it was given ‘shortly after’ his committal for trial, which was when he became subject to a ‘criminal charge’. Intervals of up to seven hours have been held to comply with the similar obligation in Article 5(2) of the Convention to inform a person ‘promptly’ of the reasons for their arrest.1008

As to the level of ‘detail’ to be given, this will depend on the particular circumstances but the accused ‘must at any rate be provided with sufficient information as is necessary to understand fully the extent of the charges against him with a view to preparing an adequate defence’.1009 As the words ‘in detail’ suggest, the information to which an accused is entitled under Article 6(3)(a) is ‘more specific and more detailed’ than that which an accused must receive under Article 5(2).1010

Article 6(3)(a) does not impose any ‘special formal requirement as to the manner’ in which the accused is to be given the required information.1011 Although its importance is such that it should normally be given in writing, this is not essential: depending on the facts, the accused may be given the information orally or he may have waived his right to a written communication. In Kamasinski v Austria,1012 sufficient information was given orally to the applicant during the questioning sessions following his arrest. Where the information is sent in writing by post, proof of delivery is generally required.1013 Where a person has mental difficulties, appropriate action must be taken to make sure that he is aware of the nature and cause of the accusation against him.1014

The information required by Article 6(3)(a) must be given to the accused in a ‘language which he understands’. A translation must be provided ‘whenever there are reasons to suspect that the defendant is not proficient enough in the language of the proceedings’.1015 However, it is sufficient that court files are available in a language known to the accused or to their lawyer.1016 The cost of any required translation must be met by the state under Article 6(3)(e).

Where a person has mental difficulties, appropriate action must be taken to make sure that he is aware of the nature and cause of the accusation against him.1017

III. Article 6(3)(b): The Right to Adequate Time and Facilities

Article 6(3)(b) guarantees a person ‘charged with a criminal offence’ ‘adequate time and facilities for the preparation of his defence’. It applies to all stages of proceedings, including the pre-trial and any appellate stages. Article 6(3)(b) requires that the accused has ‘the opportunity to organise his or her defence in an appropriate way and without restriction p. 478as to the possibility to put all relevant defence arguments before the trial court, and thus of influencing the proceedings’.1018 As with other guarantees of the rights of the accused, the purpose of Article 6(3)(b) is above all, to ‘establish equality, as far as possible, between the prosecution and the defence’.1019

a. Adequate time

The guarantee of ‘adequate time’ to prepare a defence is the counterpoise to that in Article 6(1) by which an accused must be tried within a reasonable time. Whether the time available is ‘adequate’ will depend upon the facts of the case.1020 Relevant considerations are the magnitude and complexity of the case,1021 whether the accused is defending themselves,1022 the accused’s lawyer’s workload,1023 whether new evidence is presented at trial,1024 and the stage of proceedings.1025 The prosecution must act ‘promptly and diligently’ to provide the defence with prosecution evidence in good time.1026 Any inadequacy that results from the inadequate time allowed to prepare the defence may be rectified in appeal proceedings.1027

The following examples illustrate the application of the ‘adequate time’ guarantee. In Öcalan v Turkey,1028 two weeks for the accused’s lawyers to examine a case file of 17,000 pages in a complex national security case were insufficient. So were just two hours for an accused who was defending himself in a minor public order case.1029 In contrast, a period of five days’ notice of a prison disciplinary hearing was adequate on the facts.1030 The re-characterization on the final day of a trial of the offence with which the accused was charged gave him inadequate time to consult with his lawyer and prepare his defence.1031 The Court has taken into account whether the defence has applied for an adjournment or been able to do so.1032

b. Adequate facilities

Cases about ‘facilities’ in Article 6(3)(b) have mostly concerned access to evidence. Thus, an accused ‘should have the opportunity to acquaint him or herself for the purposes of preparing his or her defence with the results of investigations carried out throughout the p. 479proceedings’.1033 In addition, in legal systems where this is relevant, the defence must have ‘unrestricted access to the case file’.1034 Generally, Article 6 requires that the prosecution disclose to the defence all material evidence in its possession for or against the accused.1035 However, in a series of UK cases it was held that non-disclosure on grounds of public immunity is permitted if the procedure followed when the non-disclosure decision is taken incorporates adequate safeguards for the accused.1036 But, in Moiseyev v Russia,1037 there was a violation of Article 6(3)(b) when, for national security reasons, the state only allowed the accused and his defence team to read certain documents in the case file at a court or other office; they could not take copies of them.

Apart from access to evidence, in Razvozzhayev v Russia and Ukraine and Udaltsov v Russia,1038 Article 6(3)(b) was interpreted as including an ‘obligation to organize the proceedings in such a way as not to prejudice the accused’s power to concentrate and apply mental dexterity in defending his position’. The Court had in mind the timing of court sessions, the conditions of the accused’s detention, and his transport to court. Such considerations affected the accused’s ability to ‘participate effectively in the proceedings’ in breach of Article 6(3)(b). The placing of the accused in the Razvozzhayev case in a glass cabin during the trial similarly affected his ability to participate effectively in the trial in breach of Article 6(1) and (3)(b).1039

‘Facilities’ also include the accused’s right to consult with a lawyer to the extent necessary to prepare their defence.1040 There is an overlap here between Article 6(3)(b) and the more general right to legal assistance in Article 6(3)(c) discussed in the following section. The right to consult with a lawyer extends to written as well as oral consultation. Questions concerning prison correspondence, in respect of which problems of correspondence between accused persons and their lawyers are most likely to arise, have usually been considered under Article 8.1041 It is for an accused who appoints his own lawyer to ensure that the lawyer speaks a language that the accused understands or to arrange for an interpreter; the state is under no obligation to provide an interpreter in such a case.1042

If there is a right of appeal from the trial court decision, Article 6(3)(b) requires that the applicant be allowed sufficient facilities to prepare the appeal. Thus, the applicant must be informed in good time in sufficient detail of the reasons for the decision against them.1043 If the applicant is detained, the prison authorities must take reasonable steps to supply them with the legal and other materials needed to prepare the appeal.1044

IV.p. 480 Article 6(3)(c): The Right to Defend Oneself in Person or through Legal Assistance

The purpose of this guarantee is to ensure that proceedings against a person ‘charged with a criminal offence’ ‘will not take place without adequate representation of the case for the defence’.1045 Article 6(3)(c) applies to the pre-trial stage as well as to the trial and any appeal proceedings.

a. Defence in person

Article 6(3)(c) guarantees the right of the accused to defend himself in person. The right is not an absolute one. In Correia de Matos v Portugal,1046 the Grand Chamber held that although the state authorities must ‘have regard to’ the accused’s wishes as to legal representation, they ‘may override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice’.1047 The accused, a qualified but disbarred lawyer, was not allowed to defend himself when being prosecuted for insulting a judge because the national law provided that accused persons had to be represented by a lawyer in all cases unless the outcome of the prosecution could not be a custodial sentence. The reasons given by the national legislature and courts for this requirement were to provide the accused with a ‘dispassionate and technically prepared defence’ and to ensure equality of arms with the prosecutor.1048 The Grand Chamber held, by nine votes to eight, that these were ‘relevant and sufficient reasons’ for the requirement, so that it fell within the state’s margin of appreciation. Another factor in the Court’s reasoning was that under the respondent state’s law an accused could participate in the proceedings in various ways short of representation. The dissenting judges considered that the majority’s approach did not pay sufficient regard to the autonomy of the accused; the severity and complexity of the offence concerned; the need to take account of the different levels of proceedings that there might be; the practice of most states parties;1049 and the harmonization of international human rights law.1050 They argued, variously but convincingly, for an interpretation of Article 6(3)(c) by which an accused would be entitled to represent themselves unless there were good reasons to the contrary.1051

b. Legal assistance

Article 6(3)(c) provides that an accused who does not defend himself in person is entitled to have ‘legal assistance’ of his own choosing or, subject to certain limitations, provided by the state. By ‘legal assistance’ is meant the ‘whole range’ of such services: ‘discussion of the case, organisation of the defence, collection of evidence favourable to the accused, p. 481preparation for questioning, support of an accused in distress and checking the conditions of detention’.1052 The accused may choose to be assisted by a person who is not a qualified lawyer.1053 The drafting history1054 and the object and purpose of Article 6(3)(c) suggest that professional qualifications are not necessary.

The right to legal assistance applies at the pre-trial stage as well as later. It may be more important then than later because of incriminating statements made during questioning. In Beuze v Belgium,1055 the Grand Chamber stated that the right to legal assistance starts ‘from the time of the suspect’s arrest, whether or not that person is interviewed or participates in any other investigative measure during the relevant period’. The Grand Chamber summarized the elements of the right at the pre-trial stage as follows:

133. First, suspects must be able to enter into contact with a lawyer from the time when they are taken into custody. It must therefore be possible for a suspect to consult with his or her lawyer prior to an interview1056 … or even where there is no interview. …

134. Secondly … suspects have the right for their lawyer to be physically present during their initial police interviews and whenever they are questioned in the subsequent pre‑trial proceedings. … Such physical presence must enable the lawyer to provide assistance that is effective and practical rather than merely abstract … and in particular to ensure that the defence rights of the interviewed suspect are not prejudiced.1057

As to the right to the presence of a lawyer during questioning,1058 the mere passive presence of a lawyer without their possibility of intervening to ensure the accused’s rights is not sufficient.1059 The right to the presence of a lawyer also applies, in legal systems where this is relevant, to a pre-trial ‘confrontation between the accused and a third party, for example a witness or a co-accused’.1060 The non-participation of a lawyer in ‘investigative measures such as identity parades … or reconstructions’ may also render a trial unfair in violation of Article 6.1061 As to video or audio recordings of police interviews, in Brennan p. 482v UK,1062 the Court accepted that they were safeguards against police misconduct but was ‘not persuaded that these were an indispensable precondition of fairness’; the circumstances of each case have to be considered ‘as a whole’.

Access to a lawyer at the pre-trial stage is not an absolute right. A two-stage test set out in Beuze v Belgium1063 applies to justify a restriction. First, there must be ‘compelling reasons’ for the restriction. An ‘urgent need to avert serious adverse consequences for life, liberty of physical integrity’ may amount to such a ‘reason’.1064 A ‘non-specific claim’ of a risk of ‘leaks’ compromising an investigation will not.1065 More generally, restrictions ‘are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individualized assessment of the particular circumstances of the case’.1066 Second, an assessment of the overall fairness of the trial is required. This second stage applies in all cases, including cases in which there are no ‘compelling reasons’. There will be no violation of Article 6 if the state can demonstrate that ‘the overall fairness of the proceedings was not irretrievably prejudiced by the restriction’. The difference between cases in which there are and are not ‘compelling reasons’ is that in the latter the Strasbourg Court ‘must apply very strict scrutiny to its fairness assessment’, with the absence of such reasons weighing ‘heavily in the balance’ and ‘may tip the balance towards finding a violation’.1067

The approach adopted in the Beuze case was criticized by several judges in the case who considered that a restriction on the right of access to a lawyer for which there were no ‘compelling reasons’ should automatically be a violation of Article 6(3)(c).1068 They argued that whereas the Grand Chamber in Beuze had claimed to clarify an earlier test adopted by it in Salduz v Turkey,1069 it had in effect contradicted it. In Salduz, the applicant had been convicted of a terrorist offence by a state security court mainly on the basis of an incriminating statement he had made in a police interview without having had access to a lawyer—such access not being allowed by Turkish law at that stage of proceedings to all arrested suspects in state security court cases. The Grand Chamber held unanimously that there had been a violation of Article 6(3)(c) in conjunction with Article 6 (1) ‘on account of the lack of legal assistance to the applicant while he was in police custody’.1070 Salduz had been interpreted in a series of Turkish cases1071 as distinguishing between cases in which there were and were not ‘compelling reasons’, with the absence of ‘compelling reasons’ giving rise eo ipso to a violation of Article 6(3)(c).

The test in the Beuze case is in line with the Court’s recent emphasis upon a ‘fairness as a whole’ approach generally to the interpretation and application of Article 6(3).1072 The ruling that the absence of ‘compelling reasons’ does not automatically result in a violation of Article 6 did not affect the outcome of the Beuze case. The accused was interviewed in custody by the police and by an investigating judge before he had consulted a lawyer: under Belgian law suspects were not allowed to communicate with a lawyer until a later stage of proceedings. Finding that the statements made in these interviews were ‘an integral part’ of the evidence on which his conviction for attempted murder was based and might have p. 483influenced the jury in his conviction for murder, the Grand Chamber held unanimously that there had been a violation of Article 6(1) and (3)(c). It found that the respondent state had not provided ‘compelling reasons’ for the restrictions and, applying its ‘very strict scrutiny’ approach, held that the statutory restriction on the right of access to a lawyer at the pre-trial stage had rendered the proceedings ‘unfair as a whole’.1073

In contrast, the absence of an automatic violation in non-‘compelling reasons’ cases was crucial in Doyle v Ireland.1074 Although the accused was allowed, in accordance with established police practice, to consult with his solicitor by telephone before and between his interviews in police custody, his solicitor was not present during the interviews, as Article 6(3)(c) required. However, video recordings were made of the interviews and were available to the judges at all levels and to the trial jury. The Strasbourg Court held that there had been no violation of Article 6(1) and (3)(c). There were no ‘compelling reasons’ justifying the solicitor’s absence, but, although the ‘very strict scrutiny’ fairness assessment required by Beuze was applied, the availability of the audio-visual recordings meant that ‘the overall fairness of the trial was not irretrievably prejudiced’.

There were ‘compelling reasons’ for a restriction on the right of access to a lawyer in the pre-Beuze case of Ibrahim and Others v UK.1075 Bombs on the London Underground had failed to explode just two weeks after terrorist bombs had killed 52 persons on the Underground and on a bus. Three of the four applicants were arrested and immediately questioned in ‘safety interviews’ for several hours, during which time they were not allowed access to legal advice. The Grand Chamber held that there were ‘exceptional circumstances’ in the case, viz the ‘urgent need to avert serious adverse consequences for life, liberty or physical integrity’, and noted that the permissible delay in access to legal advice was temporary (up to 48 hours). The Grand Chamber held that the second part of the test was satisfied in the case of the first three applicants, with, inter alia, sufficient account having been taken (eg in the judge’s summing-up) of the fact that statements made during police questioning without legal advice were admitted in evidence. The Court was satisfied that notwithstanding the delay in affording the first three applicants access to legal advice, the ‘proceedings as a whole in respect of each applicant were fair’.1076 In the case of the fourth applicant, who had been arrested separately, there were no ‘compelling reasons’. Applying a ‘very strict scrutiny’ approach to the overall fairness of his trial, the Court found a violation of Article 6(1) and (3)(c) in his case.

Article 6(3)(c) guarantees an accused the right to legal assistance ‘of his own choosing’, but this right too is not absolute. The national authorities ‘must have regard to the defendant’s wishes as to his or her choice of legal representation, but may override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice’.1077 Regulations governing the qualifications and conduct of lawyers authorized to practise law in a state’s legal system are permissible,1078 as are rules limiting the accused’s choice of lawyer to members of a specialist bar.1079 A lawyer may be excluded p. 484for failure to comply with professional ethics,1080 refusal to wear robes,1081 showing disrespect to the court,1082 because they are appearing as a witness for the defence,1083 or have a personal interest in the case.1084 A restriction upon the number of lawyers appointed by the accused is permissible, so long as the defence is able to present its case adequately and on an equal footing with the prosecution.1085 A state is not liable if an accused is unable to find a lawyer who will act for him, provided that this failure is not the result of ‘pressure or manoeuvres’ by the state.1086 Although the state thus has a general regulatory power, the Strasbourg Court retains the capacity to intervene if it is used improperly, for example by excluding a lawyer simply because of his willingness to represent an ‘unpopular accused’ or his opposition to the government. If there are no ‘relevant and sufficient grounds’ in a particular case, there will be a violation of Article 6 if, but only if, ‘the resulting restriction on the applicant’s exercise of his informed choice of lawyer adversely affected the fairness of the proceedings as a whole’.1087

A person subject to a criminal charge must be informed of their right to legal assistance.1088 The right to legal assistance may be waived.1089 The accused’s signature of a document informing him of his rights generally and reminding him of his right to silence was not a valid waiver.1090 Waiver could also not be inferred from the fact that the accused answered police questions in the absence of his lawyer after earlier invoking his right to be assisted by a lawyer during interrogation.1091

Article 6(3)(c) guarantees the accused’s right to be present at the trial and appeal as well as his lawyer.1092 However, the right to legal representation at the hearing is not dependent upon the accused’s presence.1093 Thus, in Campbell and Fell v UK,1094 the Court held that Article 6(3)(c) had been infringed because a prisoner, who had refused to attend in person, was denied legal representation at a Board of Visitors hearing of a disciplinary charge against him. Refusal to allow proceedings to continue with legal representation when the accused has absconded is a disproportionate penalty in violation of Article 6(3)(c).1095

c.p. 485 Legal aid

Most accused persons are indigent so that the guarantee of legal aid in Article 6(3)(c) is of particular importance. Although an assessment of whether legal aid is required is in the first instance for the national authorities to make and a ‘margin of appreciation’ applies,1096 the Strasbourg Court is competent to review and disagree with their assessment, applying the terms of Article 6(3)(c).

Legal aid in Article 6(3)(c) is subject to two conditions. First, the accused must lack ‘sufficient means’ to pay for legal assistance. The Convention contains no definition of ‘sufficient means’ and there is little case law indicating the level or kind of private means that may be taken into account when deciding whether to award legal aid. Although the onus is on the accused to show that they lack ‘sufficient means’, they need not do so ‘beyond all doubt’; it is sufficient that there are ‘some indications’ that this is so. This test was formulated and satisfied on the facts in Pakelli v Germany,1097 on the basis that the applicant had spent two years in custody shortly before the case, had presented a statement of means to the Commission that led it to award him legal aid in bringing his Strasbourg application, and had offered to prove lack of means to the West German Federal Court. In Morris v UK,1098 the offer of legal aid for court-martial proceedings subject to a contribution of about 15 per cent of the applicant’s net salary was not ‘arbitrary or unreasonable’.

Second, legal aid need only be provided ‘where the interests of justice so require’. A number of criteria have been identified by the Court as relevant. First, what is at stake for the applicant in terms of the seriousness of the offence and hence the possible sentence that could result is of great importance. In Quaranta v Switzerland,1099 the ‘mere fact’ that the possible sentence that could be imposed upon the accused for drugs offences was three years’ imprisonment meant that legal aid should have been provided.1100 In contrast, in Gutfreund v France,1101 the ‘interests of justice’ did not require legal aid where the maximum possible sentence on a minor assault charge was not imprisonment but a modest fine (FF5,000) and where the procedure was ‘simple’. In Benham v UK,1102 it was stated that where any ‘deprivation of liberty is at stake, the interests of justice in principle call for legal representation’. Second, the more complicated the case on the law or the facts, the more likely that legal assistance is required.1103 Third, regard must be had to the contribution that the accused would be able to make if they defended themselves, the test being the capacity of the particular accused to present their case.1104 Legal representation may be required ‘in p. 486the interests of justice’ when the applicant’s hearing is impaired so that he cannot follow the proceedings.1105

When applying the ‘interests justice’ requirement, the test is not whether the absence of legal aid has caused ‘actual prejudice’ to the presentation of the defence. In Artico v Italy,1106 the Court stated that the test is a less stringent one, viz whether ‘it appears plausible in the particular circumstances’ that the lawyer would be of assistance, as was true on the facts of that case. There the Court noted that a lawyer would have been more likely than the applicant to have emphasized a statute of limitations argument in the applicant’s favour before the Court of Cassation and that only a lawyer was competent to request a hearing at which the defence could have replied to the Public Prosecutor’s arguments against the appeal. On this basis, legal aid comes close to being generally required, because a lawyer will in most cases, by virtue of his professional expertise, be able to add to the accused’s defence.

In appeal cases, it does not matter that the accused’s chances of success are small.1107 To the extent that the accused is granted a right of appeal by national law, he must be provided with legal aid ‘in the interests of justice’ if this is required for him to exercise it effectively. Thus, in Boner v UK,1108 the applicant was refused legal aid on the statutory ground that he did not have ‘substantial grounds for making the appeal’. In holding that there had been a breach of Article 6(3)(c), the Court focused on the fact that the accused would need the services of a lawyer in order to argue the point he wished to raise, and, above all, the importance of what was at stake for him (an eight-year sentence).

The appointment of a legal aid lawyer for the hearing of an appeal will not remedy the absence of a lawyer at the trial stage where the appeal court lacks jurisdiction to consider the case again fully on the law and the facts.1109

Although the wishes of the accused must be taken into account, the choice of a legal aid lawyer is ultimately for the state. In Lagerblom v Sweden,1110 the accused, whose mother tongue was Finnish and who was required by Swedish law to be legally represented in connection with assault and road traffic offences, wanted the lawyer chosen for him by the court to be replaced by a Finnish-speaking lawyer. The Strasbourg Court held that there had been no breach of Article 6(3)(c) because the appointed lawyer had already done work on the case and the accused had both sufficient knowledge of Swedish and an interpreter. However, in a legal aid case it is the responsibility of the state under Article 6(3)(c) to provide an interpreter for communication with his client where necessary.1111

The funding of legal aid is an expensive item for states. In the context of legal aid in civil proceedings, it has been held that, when required, it must be provided in accordance with Article 6(1) irrespective of the economic cost.1112 The same approach must apply to criminal cases under Article 6(3)(c), so that budgetary considerations should not prevent effective legal assistance for accused persons who otherwise qualify under Article 6(3)(c).1113

d.p. 487 Practical and effective legal assistance

The right in Article 6(3)(c) is to ‘practical and effective’ legal assistance.1114 This does not mean that the state is responsible for every shortcoming of a lawyer acting for the defence. As stated in Kamasinski v Austria,1115 it ‘follows from the independence of the legal profession of the state that the conduct of the defence is essentially a matter between the defendant and his counsel, whether counsel be appointed under a legal aid scheme or be privately financed’. Because of the state’s lack of power to supervise or control their conduct, a lawyer, even though appointed by the state, is not an ‘organ’ of the state who can engage its direct responsibility under the Convention by their acts, in the way, for example, that a policeman or soldier may.1116 Instead, the ‘competent national authorities’, who may be the courts or other state actors, ‘are required by Article 6(3)(c) to intervene only if a failure by legal aid counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way’.1117 This limited obligation applies also to lawyers appointed privately. This is the case where the accused is a juvenile and the offence is serious1118 and is arguably so in other private lawyer cases too.1119

There was state liability under Article 6(3) in Artico v Italy.1120 The applicant had been granted free legal aid for his appeal to the Italian Court of Cassation. The appointed lawyer never acted for the applicant, claiming other legal commitments and ill-health. Despite constant requests by the applicant, the Court of Cassation refused to appoint another lawyer to replace him. As a result, the applicant was forced to plead the case himself in circumstances in which legal assistance would have been likely to have been of value (see earlier). Noting that the right in Article 6(3)(c) was to ‘assistance’, not ‘nomination’, the European Court rejected an Italian argument that by appointing a lawyer for the accused the Court of Cassation had done sufficient to comply with Article 6(3)(c).

There may also be liability on the Kamasinski basis where the lawyer fails to comply with a ‘formal’ but crucial procedural requirement. In Czekalla v Portugal,1121 the applicant’s appeal to the Supreme Court had been dismissed because his legal aid lawyer had not complied in her pleadings with a ‘simple and purely formal rule’. This was a ‘manifest failure’ which called for positive measures on the part of the relevant authorities. The Strasbourg Court was strongly influenced in this case by the facts that the accused faced a lengthy prison sentence and—as a foreigner who did not know the language used in court—was utterly dependent on his lawyer.1122

To be distinguished from a ‘formal’ or procedural error such as that in the Czekalla case, is ‘an injudicious line of defence or a mere defect in argumentation’1123 or other professional errors1124 in presenting the accused’s defence. In such cases, the state is unlikely to p. 488be liable for the lawyer’s conduct of the case, whatever is at stake for the accused and even though the lawyer is state-appointed.1125

A key part of the right to practical and effective legal assistance in Article 6(3)(c) is the accused’s ‘right to communicate with his legal representative out of the hearing of a third person’.1126 This has particular significance for persons in detention. In S v Switzerland,1127 Article 6(3)(c) was infringed when the accused was not allowed to consult with his lawyer out of the hearing of a prison officer. Restrictions upon visits by lawyers may be imposed if they can be justified in the public interest (eg to prevent escape or the obstruction of justice).1128 The number and length of visits and opportunities for consultation by a lawyer with the accused must be sufficient. In Öcalan v Turkey,1129 after the first two visits, the accused was allowed only two one-hour visits a week from his lawyers. This was insufficient given the highly complex charges against the accused and the voluminous case file that they had generated. In Sakhnovskiy v Russia,1130 the fact that the applicant’s legal aid lawyer on appeal, having been appointed at the last minute, had been given only 15 minutes to communicate by video link meant that the applicant’s access to a lawyer was insufficient.

The requirement that assistance be ‘practical and effective’ has been considered in a variety of other contexts. A state will be in breach of the requirement if it negligently fails to notify the accused’s lawyer of the hearing with the result that the accused is not represented at it.1131 To be ‘effective’, a lawyer appointed to defend an accused must have the appropriate subject area expertise.1132 Frequent changes of lawyers appointed for the defence may raise a problem of effectiveness.1133 In Yaroslav Belousov v Russia,1134 the confinement of the accused in a glass cabin in the courtroom was a restriction on practical assistance by his lawyer in violation of Article 6(3)(c). In accordance with lawyer–client confidentiality, it may be a breach of Article 6(3)(c) to tap telephone conversations between an accused and their lawyer1135 or to search a lawyer’s office without a ‘compelling reason’.1136 Communication between an accused and their lawyer by video link must be confidential.1137 The guarantee of access to a lawyer may be subject to restrictions in the public interest, but surveillance of ‘the contacts of a detainee with his defence counsel is a serious interference with an accused’s defence rights’ so that ‘very weighty reasons should be given for its justification’.1138 The fear of collusion between the accused and the lawyer, resulting in the influencing of witnesses or the removal of documents, was insufficient to justify p. 489an investigating judge’s order authorization of such surveillance in Lanz v Austria.1139 In contrast, the need for confidentiality to catch other members of the accused’s criminal gang justified the surveillance in Kempers v Austria.1140 A restriction by which a lawyer may not discuss certain evidence with his client may be permissible to protect the identity of an informer.1141 A restriction by which an accused charged with revealing state secrets is prevented from discussing classified information with his lawyer may be in breach of Article 6(3)(c).1142

In guaranteeing a right of access to a lawyer, Article 6(3)(c) overlaps with Article 6(3)(b) which guarantees the accused the right to ‘adequate facilities’ to prepare the defence. Article 6(3)(c) is wider than Article 6(3)(b) since it ‘is not especially tied to considerations relating to the preparation of the trial but gives the accused a more general right to assistance and support by a lawyer throughout the whole proceedings’.1143

V. Article 6(3)(d): The Right to Call and Cross-Examine Witnesses

Article 6(3)(d) guarantees a person ‘charged with a criminal offence’1144 the right:

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.

Article 6(3)(3)(d) ‘enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument’.1145 It applies fully to trial and appeal proceedings. At the pre-trial stage, it does not require the presence of the accused at a pre-trial hearing of witnesses if those witnesses are again heard at the trial and can then be examined by the accused.1146 The refusal by an investigating judge to hear a defence witness who is free to give evidence at the trial is not a breach of Article 6(3)(d).1147

With regard to trial proceedings, neither the right to call defence witnesses or to cross-examine prosecution witnesses in court is absolute. However, any limitations must be consistent with the principle of ‘equality of arms’, the full realization of which is the ‘essential aim’ of Article 6(3)(d).1148 Article 6(3)(d) recognizes that at the trial court hearing it is ‘in principle’ essential that an accused is allowed to be present when witnesses are being heard in a case against him.1149 Exceptionally, however, the interests of justice may permit the exclusion of the accused consistent with Article 6(3)(d) to ensure that a witness gives an unreserved statement, provided that the accused’s lawyer is allowed to remain and conduct any cross-examination.1150 Article 6(3)(d) supposes that the examination of witnesses p. 490occurs before the judge who decides the case, so that if a judge is replaced after a witness is heard, generally the witness must be recalled.1151

The term ‘witness’ in Article 6(3)(d) has an autonomous Convention meaning. It is not limited to persons who give evidence at the trial; a person whose statements are introduced as evidence but who does not give oral evidence is also a ‘witness’.1152 A co-accused is a witness, so that depositions made by them during the investigation stage1153 or at their own separate trial1154 that are introduced as evidence at the accused’s trial are subject to Article 6(3)(d). The defence is entitled to examine or cross-examine ‘experts’ called by either party in accordance with Article 6(3)(d); in the case of experts appointed by the court, the defence should have the opportunity to question them, ‘to challenge their findings and to examine them directly at the trial’.1155

The right to call or cross-examine witnesses may be waived.1156 There was a waiver of the right when the defence agreed to the reading out of a witness’s pre-trial statements without insisting that he be examined in court.1157

a. The right to call witnesses for the defence

‘As a general rule, it is for the domestic courts to assess whether it is appropriate to call a particular witness.’1158 However, the accused’s right in Article 6(3)(d) sets a limit to the domestic court’s discretion in this regard. In Murtazaliyeva v Russia,1159 the Grand Chamber adopted a ‘three-pronged’ test to be applied when determining whether refusal to hear a witness for the defence exceeds this limit in the form of the following three questions:

(i)

Was the defence’s request ‘sufficiently reasoned and relevant to the subject matter of the accusation’?

(ii)

Did the domestic courts consider ‘the relevance of that testimony and provide sufficient reasons for their decision not to examine a witness at trial’?

(iii)

Had the domestic court’s decision ‘undermined the overall fairness of the proceedings’?

The Murtazaliyeva test revised the test that the Court had adopted in Perna v Italy.1160 In the original Perna test, the accused was required to show that the proposed witness’s evidence was ‘necessary for the establishment of the truth’.

The first question in the Murtazliyeva test is more helpful to the defence as it supposes a wider range of eligible witnesses, extending ‘not only … to witnesses capable of influencing the outcome of the trial, but also other witnesses who can reasonably be expected to strengthen the position of the defence’.1161 The second question underlines the responsibility of the trial court to give serious consideration to the witness request. When it is applied, p. 491‘[t]he stronger and weightier the arguments advanced by the defence, the closer must be the scrutiny and the more convincing must be the reasoning of the domestic courts if they refuse the defence’s request to examine a witness’.1162 In Kikabidze v Georgia,1163 the Court held that there was a violation of Article 6(3)(d) when the judge rejected all of the defence’s proposed witnesses—so that there were no witnesses for the defence in the applicant’s trial for murder—without sufficiently detailed reasons. The third question accords with the Court’s current emphasis upon applying an ‘overall fairness’ test for compliance with Article 6. ‘[W]hile the conclusions under the first two steps of … [the] test would generally be strongly indicative as to whether the proceedings were fair, it cannot be excluded that in certain, admittedly exceptional, cases considerations of fairness might warrant the opposite conclusion.’1164

Where witnesses are properly called by the defence, a court is under a positive obligation to take appropriate steps to ensure their appearance.1165 There is no breach of Article 6(3)(d), however, if a defence witness fails to appear for reasons beyond the court’s control.1166 In Yam v UK,1167 the Court rejected a claim that holding part of the hearing in camera may have violated Article 6(3)(d) by causing possible witnesses for the defence not to come forward for lack of knowledge of the proceedings.

b. The right of the accused to ‘examine … witnesses against him’

Article 6(3)(d) requires that ‘as a rule … the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings’.1168 In Nevzlin v Russia,1169 Article 6(3)(d) was violated when the defence was not given an ‘effective opportunity’ to cross-examine a key witness. In Vaturi v France,1170 there was a violation when the defence was not allowed to cross-examine any witnesses, either at the trial or on appeal.

A controversial issue in the Court’s case law has been whether the admission of the evidence of an absent witness which has contributed to a conviction complies with Article 6(3)(d). In Al-Khawaja and Tahery v UK,1171 the Grand Chamber identified the considerations to be taken into account in the form of the following three questions: (i) was there a good reason for the non-attendance of the witness; (ii) was that witness’s evidence ‘the sole or decisive basis’ for the conviction; and (iii) were there sufficient counterbalancing factors to compensate for the handicaps caused to the defence by the admission of the evidence that ensured that the trial, as a whole, was fair?

The relationship between these three questions was clarified in Schatschaschwili v Germany.1172 There the Grand Chamber stated, first, that the lack of a good reason for non-attendance is not conclusive as to the fairness of a trial, although it will be ‘a very important factor to be weighed in the balance’.1173 The Grand Chamber then noted that p. 492in Al-Khawaja it had rejected the absolute rule found in its earlier case law1174 by which the admission of ‘sole or decisive’ evidence automatically and without exception was a breach of Article 6(3)(d). In Schatschaschwili, the Grand Chamber stated that the rule in ‘sole or decisive’ evidence cases was that, just as it must do in other cases, the Strasbourg Court must conduct the balancing exercise in question (iii): in both kinds of case it had to decide whether the admission of the absent witness’s evidence ‘may have handicapped the defence’ to the point where the trial as a whole was unfair.1175

As to what is a ‘good reason’, in the Schatschaschwili case1176 the Grand Chamber identified the following as circumstances that might justify a witness’s absence: death1177 or ill-health,1178 ‘unreachability’,1179 and fear.1180 As to ‘unreachability’, the state must ‘actively search for the witness’ and ‘do everything … reasonably possible’ to secure the presence of the witness.1181 As to fear of reprisals (against the accused or their family), the Court has drawn a distinction between fear generated by acts of the accused or a person acting for him and ‘a more general fear of what will happen’ if the witness gives evidence.1182 In the former case, the accused can be taken to have waived his right to question the witness, so that there can be no breach of Article 6(3)(d). In the latter case, the Al-Khawaja requirements apply. However, ‘any subjective fear’ of the witness will not suffice; the court must inquire whether there are ‘objective grounds’ for the fear, supported by evidence.1183 Moreover, where the reason is fear of reprisals ‘the trial court must be satisfied that all available alternatives, such as witness anonymity and other special measures, would be inappropriate or impracticable’.1184 In respect of all of the grounds, the Court has emphasized that ‘when a witness has not been examined at any stage of the proceedings, allowing the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort’.1185

As to the question whether the untested evidence in issue is the ‘sole or decisive’ evidence on which the conviction is based, in Al-Khawaja, the Grand Chamber confirmed that ‘solely’ refers to the situation where that evidence is the ‘only’ evidence.1186 As to ‘decisive’, this term ‘should be narrowly understood as indicating evidence of such significance p. 493or importance as is likely to be determinative of the outcome of the case’, taking into account the strength of other accompanying evidence.1187

As to whether there are sufficient counterbalancing factors, in Al-Khawaja the Grand Chamber stated that the proceedings must be subjected ‘to the most searching scrutiny’ to establish that these are present, ‘including the existence of strong procedural safeguards’.1188 In Schatschaschwili,1189 the Grand Chamber added more detail, stating, inter alia, that the domestic courts must approach the untested evidence of an absent witness ‘with caution’, being aware that it must carry ‘less weight’, and must provide reasons for considering it reliable. It noted that further safeguards are the availability of corroborative evidence and, of particular importance, where the legal system and other circumstances allow, the availability of an adequate opportunity for the defence to cross-examine the witness at the pre-trial investigation stage.1190

In the Al-Khawaja case1191 itself, the Grand Chamber held that the admission of hearsay evidence in English criminal proceedings, by which, in certain exceptional cases, the evidence of persons who do not give evidence in court may be admitted, ‘will not automatically result in a breach of Article 6(1)’. Applying its ‘most searching scrutiny’ requirement to the first applicant’s case, the Court found that there was no breach of Article 6(3)(d). In his case, the applicant had been convicted on two charges of indecent assault of female patients. One of the patients had died before the trial, but, as permitted by the hearsay rule, her witness statement was read out in court. Her statement, which was the decisive evidence, was corroborated by two friends in whom she had confided who were cross-examined at the trial, and the other patient victim gave a similar account. In addition, the judge had directed the jury that the witness statement should be given less weight in the absence of cross-examination. The Grand Chamber held that in these circumstances there were ‘sufficient counterbalancing factors’. In contrast, there was a breach of Article 6 in the case of the second applicant. In that case, the applicant was convicted of a stabbing for which the decisive evidence was that of the only person who claimed to have seen the stabbing, who was a man whose written statement was read to the court but who was allowed under the hearsay rule not to appear as a witness for fear of reprisals. Although the applicant could cross-examine other persons present when the stabbing occurred but who did not claim to have seen the stabbing, he could not cross-examine the only eyewitness, and the judge’s direction to the jury on untested evidence could not overcome this.

In Al-Khawaja, the Grand Chamber stated that its judgment was focused solely on absent witnesses whose statements were admitted in evidence at trial, not ‘testimony given at trial by witnesses whose identity is concealed from the accused (anonymous testimony)’.1192 p. 494It added, however, that although the problems present by absent and anonymous witnesses differ—with the lack of identity of the latter preventing the accused from challenging their probity and credibility and the absence of the former preventing questioning altogether—the two situations were subject to the same principle, viz that the accused should have ‘an effective opportunity’ to challenge the evidence against him. In Ellis and Others v UK,1193 the Court applied the Al-Khawaja/Schatschaschwili questions to anonymous testimony. In that case, a witness to gang-related murders gave oral evidence in court anonymously. The Court held that there were ‘good reasons’ why the witness feared retribution and, although there was ‘a possibility that his evidence may have been decisive in respect of some at least of the applicants’, there were ‘sufficient counter-balancing factors’ to ensure that the rights of the defence were not restricted contrary to Article 6(1) and (3)(d). In other cases, recognizing that the police are increasingly required to make use of undercover agents, informers and covert practices, particularly in tackling organized crime and corruption,1194 the Court has accepted that undercover agents may give evidence in court anonymously, subject to procedural safeguards.1195 In Van Wesenbeeck v Belgium,1196 it was held, by four votes to three, that their statements may be admitted in evidence even when those agents are not called to give evidence in court or subject to cross-examination by the defence in court or earlier in the proceeding provided that there are ‘sufficient counter-balancing factors to compensate for the handicaps under which the defence’ labours.

The Court’s judgment in Al-Khawaja applies to both civil law and common law jurisdictions. However, the Court noted that, when applying Article 6(3)(d), it must not ignore the ‘specificities of the particular legal system concerned, and in particular its rules of evidence’. ‘To do so would transform the rule into a blunt and indiscriminate instrument that runs counter to the traditional way in which the Court approaches the issue of overall fairness of the proceedings, namely to weigh in the balance the competing interests of the defence, the victim, and witnesses, and the public interest in the effective administration of justice.’1197

In the pre-Al-Khawaja case of SN v Sweden,1198 the Court accepted that special arrangements for the confrontation of a witness at the trial that would not normally comply with Article 6(3)(d) may suffice in cases involving sexual offences. In that case, the Court held that Article 6(3)(d) had to be interpreted as making some allowance for the ‘special features’ of criminal proceedings concerning such offences, because giving oral evidence at the trial in open court in such cases, particularly in cases involving children, may be an ordeal for the victim and may raise issues of respect for private life. In the SN case, the evidence of a ten-year-old child who had been sexually abused by his schoolteacher was ‘virtually the sole evidence’ on the basis of which the teacher was convicted. The child did not give evidence as a witness at the trial, but the videotape of his first police interview was shown during both the trial and appeal hearings, and the record of the second interview was read out at the trial and the audiotape played back at the appeal hearing. What was crucial for the Court was that the applicant’s lawyer had been present during the police p. 495hearing (by a specially trained unit) and had been able to suggest lines of questioning. The Court considered that this was sufficient to enable the applicant to challenge the child’s statements and his credibility. The Court also took into account that the ‘necessary care’ was taken by the national court in its evaluation of the child’s statements.1199 It seems likely that the same outcome would result post-Al-Khawaja, with there being both ‘good reason’ for the child’s absence from the trial and ‘sufficient counterbalancing factors’.

VI. Article 6(3)(e): The Right to an Interpreter

Article 6(3)(e) guarantees the right of a person ‘charged with a criminal offence’1200 to have the free assistance of an interpreter if he cannot understand or speak the language used in court. In Kamasinski v Austria,1201 the Court indicated that the right applies to persons charged with an offence ‘during the investigating stage unless it is demonstrated in the light of the particular circumstances … that there are compelling reasons to restrict’ it.1202 The right applies during the trial and to any appeal proceedings. The right to an interpreter may be waived.1203

In Vizgirda v Slovenia,1204 the Court held that a person charged with a ‘criminal offence’ must be notified of their right to an interpreter in Article 6(3)(e), with the notification occurring in a language which they understand. The right is not confined to situations where the defendant requests or otherwise indicates their need for it. Instead, it arises ‘whenever there are reasons to suspect that the defendant is not proficient enough in the language of the proceedings, for example if he or she is neither a national nor a resident in the country’.1205 When there is such suspicion, the defendant’s proficiency needs must be verified—the test being not just a basic knowledge of the language but a knowledge sufficient to ‘fully exercise his or her defence rights’.1206 The procedures used, verification decisions taken, and assistance given must be recorded.1207 In the Vizgirda case, the accused, a Lithuanian, did not know the language in which the proceedings were conducted (Slovenian) and was provided during the investigation and the trial with a Russian-language interpreter (in the absence of Lithuanian interpreters) on the assumption that he knew Russian. The respondent state did not notify the accused of his right to an interpreter or take steps to verify his proficiency in Russian. Although the accused’s counsel did not complain about the use of a Russian interpreter and the accused was able to speak and understand some Russian, the Court held that, in violation of Article 6(1) and (3), the applicant had not received ‘language assistance such as to allow him to participate actively in the trial’, thus rendering the ‘trial as a whole unfair’.1208

p. 496The obligation to provide ‘free’ assistance is absolute. It does not depend upon the accused’s means; the services of an interpreter for the accused are instead part of the facilities required of a state in organizing its system of criminal justice.1209 Nor can an accused be ordered to pay for the costs of interpretation if he is convicted. The language of Article 6(3)(e) indicates ‘neither a conditional remission, nor a temporary exemption, nor a suspension, but a once and for all exemption or exoneration’.1210 Any contrary interpretation would also be inconsistent with the object and purpose of Article 6, which is to ensure a fair trial for all accused persons, whether subsequently convicted or not, since an accused might forgo his right to an interpreter for fear of the financial consequences.1211

The ‘assistance’ required by Article 6(3)(e) applies to the translation of documents as well as the interpretation of oral statements; in both respects, the obligation is to provide such assistance as is necessary to ensure a fair trial.1212 Article 6(3)(e) does not require that every word of the oral proceedings is interpreted or that all written evidence or official documents are translated; the test is whether enough is done to allow the accused fully to understand and answer the case against him, ‘notably by being able to put before the court his version of the events’.1213 Thus, a written translation of the indictment may be unnecessary if sufficient oral information as to its contents is given to the accused, and it may be enough for an interpreter to summarize parts of the oral proceedings.1214

Article 6(3)(e) only extends to the language used in court: an accused who understands that language cannot insist upon the services of an interpreter to allow him to conduct his defence in another language, including a language of an ethnic minority of which he is a member.1215

Where the accused does not defend himself in person but is represented by a lawyer, it will generally not be sufficient that the accused’s lawyer (but not the accused) knows the language used in court. Interpretation of the proceedings is required, as the right to a fair trial, which includes the right to participate in the hearing, requires that the accused be able to understand the proceedings and present his defence.1216 Article 6(3)(e) applies to the relations between the accused and the court; communication with their lawyer is governed instead by Article 6(3)(c).1217

Clearly, the interpreter who is provided must be competent. Accordingly, in order for the right guaranteed by Article 6(3)(e) to be ‘practical and effective’, the ‘obligation of the competent authorities is not limited to the appointment of an interpreter but, if they are put on notice in the particular circumstances, may also extend to a degree of subsequent control over the adequacy of the interpretation provided’.1218 Although there is no formal requirement that an interpreter be impartial or independent of the police or other p. 497authorities, the assistance provided must not be ‘of such a nature as to impinge on the fairness of the proceedings’.1219

6. Conclusion

Although Article 6 cases do not generally catch the headlines as much as cases under some other Articles of the Convention, they are the staple diet of the Convention system. The majority of cases decided at Strasbourg raise issues under Article 6, probably because it is in the administration of justice that the state is most likely to take decisions affecting individuals in the areas of conduct covered by the Convention.

Article 6 has been given an unexpectedly but commendably wide field of application. Although it does not yet extend to every situation in which an individual would benefit from a ‘right to a court’, Article 6 has acquired an extensive reach. It controls appellate as well as trial proceedings and some pre-trial proceedings. And it applies to certain disciplinary and other proceedings before special tribunals. While this is good for the individual, it presents problems for the uniform interpretation of a text that was devised with the classical court of law in mind. Article 6 also requires states to provide judicial review of, or a right of appeal from, administrative decisions that are directly decisive for the applicant’s ‘civil rights and obligations’. Should the Court’s jurisprudence in this last regard appear confusing and in need of a coherent statement of principle, the result is still an extension of the rule of law into areas of administrative justice where it was sometimes lacking.

As to the meaning of a ‘fair trial’, Article 6 has been imaginatively and widely interpreted. A right of access to a court has been read into the text, and understood to extend to the execution of judgments, as well of their attainment. The emphasis upon ‘objective justice’ has given more bite to the guarantees of an ‘independent and impartial tribunal’ and ‘equality of arms’, leading in some cases to changes in long-standing national practices. Issues of res judicata and the reversal of judgments and delays in their execution have been particular problems for post-Soviet states. The residual right to a ‘fair hearing’ has proved fertile ground for the addition of further nominate rights and has served as a means of dealing with cases on a flexible ‘facts-as-a-whole’ basis. But the most striking feature of Article 6 cases has been the long line of decisions involving violations of the right to trial ‘within a reasonable time’. If one feature of the administration of justice in European states has been highlighted here by the Court’s jurisprudence, it is the delay that may occur before justice is delivered. Proceedings in some cases have lasted an almost unbelievable number of years.

As to the mechanics of the trial process, the Court has been far less intrusive. Given the great diversity of practice in European criminal justice systems—concerning, for example, the rules of evidence—the Court has allowed considerable discretion as to means of delivery, requiring only that the outcome of the procedure followed is a fair trial. But, in doing so, the Court has by no means surrendered its necessary monitoring role. Whereas Article 6, like its counterparts in the US Constitution, should not be seen as a ‘uniform code of criminal procedure federally imposed’,1220 there inevitably are areas in which corrective action may properly be taken to improve the administration of justice in the interests of human rights, as the Court’s now extensive jurisprudence clearly demonstrates.

Notes

  • 1 On Article 6, see Hirvelä and Heikkilä, Right to a Fair Trial: a Practical Guide to the Article 6 Case-Law, 2021 and Vitkauskas and Dikov, Protecting the Right to a Fair Trial under the European Convention on Human Rights, 2nd edn, 2017. On Article 6 in criminal cases, see Goss, Criminal Fair Trial Rights: Article 6 of the European Convention on Human Rights, 2014; McBride, Human Rights and Criminal Procedure: the Case Law of the European Court, 2nd edn, 2018; Trechsel, Human Rights in Criminal Proceedings, 2005.

  • 2 Perez v France No 47287/99 para 64 GC. This applies to Article 6 as a whole.

  • 3 See the statistics in European Court of Human Rights, Annual Report 2020, ch 6.

  • 4 Bochan v Ukraine (No 2) No 22251/08 (2015) para 61 GC.

  • 5 ibid.

  • 6 Nos 46632/13 and 28671/14 (2016) para 115. See also Anđelković v Serbia No 1401/08 (2013) para 27.

  • 7 No 72118/01 (2007) para 174.

  • 8 See, eg, Schenk v Switzerland No 10862/84 (1988) para 46 PC.

  • 9 See Schatschaschwili v Germany No 9154/19 (2015) paras 108–109 GC (admissibility of evidence). On the differences at the investigative stage, see Summers, Fair Trials: the European Criminal Procedural Tradition and the European Court of Human Rights, 2007, pp 82 ff.

  • 10 On the application of Article 6 to juvenile criminal proceedings, see Ch6, section 3, p 262.

  • 11 No 36658/05 (2018) para 117. Cf Simeonovi v Bulgaria No 21980/04 (2017) para 115.

  • 12 For details, see the relevant sections in this chapter.

  • 13 Scoppola v Italy (No 2) No 10249/03 (2009) para 139 GC.

  • 14 No 9043/05 (2014) paras 90–92.

  • 15 See Pellegrini v Italy No 30882/96 (2001) (Vatican City court judgment annulling marriage).

  • 16 Othman (Abu Qatada) v UK No 8139/09 (2012) para 261. See also Soering v UK No 14038/88 (1989) para 113 PC and Mamatkulov and Askarov v Turkey Nos 46827/99 and 46951/99 (2005) GC. Where an individual has already been returned, the existence of a ‘flagrant denial’ is to be assessed in the light of what the sending state knew or ought to have known at the time of the return: Al-Saadoon and Mufdhi v UK No 61498/08 (2010).

  • 17 ibid para 260.

  • 18 See Sejdovic v Italy No 56581/00 (2006) para 84 GC.

  • 19 See Bader and Kanbor v Sweden No 13284/04 (2005).

  • 20 See Al-Moayad v Germany No 35865/03 (2007) para 101 DA.

  • 21 Neumeister v Austria No 1936/63 (1968) para 23 and Gutfreund v France No 45681/99 (2003).

  • 22 Van Thuil v Netherlands No 20510/02 (2004) DA.

  • 23 Mosbeux v Belgium No 17083/90 (1990).

  • 24 Helmers v Sweden No 11826/85 (1991) PC.

  • 25 AGOSI v UK No 9118/80 (1986) and Air Canada v UK No 18465/91 (1995).

  • 26 Guzzardi v Italy No 7367/76 (1980) para 108 PC and Raimondo v Italy No 12954/87 (1994). But the preventative confiscation of property may concern ‘civil rights and obligations’: see Raimondo v Italy, ibid.

  • 27 R v UK No 33506/05 (2007) DA (young offender warning).

  • 28 Enea v Italy No 74912/01 (2009) GC (allocation to secure unit) and Boulois v Luxembourg No 37575/04 (2012) GC (prison leave).

  • 29 Steininger v Austria No 21539/07 (2012) para 52.

  • 30 Mamatkulov and Askarov v Turkey Nos 46827/99 and 46951/99 (2005) GC.

  • 31 Szabó v Sweden No 28578/03 (2006) DA. For an exception, see Buijen v Germany No 27804/05 (2010).

  • 32 Monedero Angora v Spain No 41138/05 (2008) DA.

  • 33 Engel and Others v Netherlands Nos 5100/71 et al (1976) para 81 PC. ‘Criminal’ has the same meaning in Articles 6 and 7 of the Convention and Articles 2–4, Seventh Protocol.

  • 34 Engel and Others v Netherlands, ibid (‘the autonomy of the concept of criminal operates, as it were, one way only’). Cf Gestur Jόnsson and Ragnar Halldόr Hall v Iceland Nos 68273/14 and 68271/14 (2020) para 76 GC. A state may make any act or omission a criminal offence unless it is conduct protected by a Convention right: ibid.

  • 35 Gestur Jόnsson and Ragnar Halldόr Hall v Iceland, ibid paras 85–86.

  • 36 Engel and Others v Netherlands Nos 5100/71 et al (1976) para 78 and Ezeh and Connors v UK Nos 39665/98 and 40086/98 (2003) para 86 GC.

  • 37 Blokhin v Russia No 47152/06 (2016) para 179 GC.

  • 38 Gestur Jόnsson and Ragnar Halldόr Hall v Iceland Nos 68273/14 and 68271/14 (2020) para 86.

  • 39 Engel and Others v Netherlands Nos 5100/71 et al (1976) para 80 PC and Ezeh and Connors v UK Nos 39665/98 and 40086/98 (2003) GC. See also Whitfield v UK Nos 46387/99 et al (2005).

  • 40 Demicoli v Malta No 13057/87 (1991) (breach of parliamentary privilege by journalist, not an MP) and Weber v Switzerland No 3688/04 (2007) (revelation of confidential court proceedings by litigant journalist).

  • 41 See, eg, Brown v UK No 328644/97 (1998) DA (lawyer). See generally Ramos Nunes de Carvalho e Sá v Portugal Nos 55391/13 et al (2018) para 123 GC.

  • 42 Nos 68273/14 and 68271/14 (2020) para 87 GC. Contrast Kyprianou v Cyprus No 73797/01 (2005) para 64 GC.

  • 43 X v UK No 8496/79 (1980) DA (police officer) and Kremzow v Austria No 16417/90 (1990) DA (civil servant).

  • 44 See, eg, Ramos Nunes de Carvalho e Sá v Portugal Nos 55391/13 et al (2018) para 117 GC (judge suspended).

  • 45 No 8544/79 (1984) PC. For other road traffic cases, see, eg, Schmautzer v Austria No 15523/89 (1995) and Escoubet v Belgium No 26780/95 (1999) GC (temporary withdrawal of driving licence preventive, not criminal).

  • 46 When deciding on the nature of an offence, the Court regularly takes account of ‘common features’ of the national law of the contracting parties: see, eg, Ravnsborg v Sweden No 14220/88 (1994) para 34.

  • 47 Deweer v Belgium No 6903/75 (1980); Garyfallou AEBE v Greece No 18996/91 (1997); Grande Stevens v Italy Nos 18640/10 et al (2014) paras 95–99 (manipulating financial market). Contrast OOO Neste St Petersburg et al v Russia No 69042/01 (2004) DA.

  • 48 Belilos v Switzerland No 10328/83 (1988) PC and Ziliberberg v Moldova No 61821/00 (2005).

  • 49 Salabiaku v France No 10519/83 (1988).

  • 50 Benham v UK No 19380/92 (1996) GC.

  • 51 Inocêncio v Portugal No 43862/98 (2001) DA.

  • 52 Wilson v UK No 36791/97 (1998).

  • 53 No 73053/01 (2006) GC. See also Bendenoun v France No 12547/86 (1994); Janosevic v Sweden No 34619/97 (2002); Julius Kloiber Schlachthof GmbH and Others v Austria No 21565/07 (2013). A fine for late payment is not ‘criminal’: Boofzheim v France No 52938/99 (2002) DA.

  • 54 Jussila v Finland, ibid para 43. In Jussila, the Article 6 right to an oral hearing was held not to apply. See also Kammerer v Austria, Ch 9, section 3.II.a, p 415.

  • 55 Engel and Others Nos 5100/71 et al (1976) para 85 PC.

  • 56 ibid para 82. Cf Blokhin v Russia No 47152/06 (2016) para 179 GC (‘presumption’ that imprisonment is ‘criminal’).

  • 57 See, eg, Grande Stevens and Others Nos 18640/10 (2014) para 99 (possible €5 million fine).

  • 58 Nos 68273 and 68271/14 (2020) para 96 GC.

  • 59 Weber v Switzerland No 11034/84 (1990); Ravnsborg v Sweden No 14220/88 (1994) para 3; Janosevic v Sweden No 34619/97 (2002).

  • 60 Gestur Jόnsson and Ragnar Halldόr Hall v Iceland Nos 68273/14 and 68271/14 (2020) para 80. See also Lauko v Slovakia No 26138/95 (1998).

  • 61 Matyjek v Poland No 38184/03 (2006) DA (lustration proceedings).

  • 62 Malige v France No 27812/95 (1998).

  • 63 Hamer v Belgium No 21861/03 (2007). A fine is not: Inocêncio v Portugal No 43862/98 (2001) DA.

  • 64 Tre Traktörer Aktiebolag v Sweden No 10873/84 (1989).

  • 65 Pierre-Bloch v France No 24194/94 (1997).

  • 66 Deweer v Belgium No 6903/75 (1980) paras 44, 46.

  • 67 Simeonovi v Bulgaria No 1989/04 (2017) para 110 GC.

  • 68 Corigliano v Italy No 8304/78 (1982) para 34. See also Wemhoff v Germany No 2122/64 (1968) para 19.

  • 69 Pedersen and Baadsgaard v Denmark No 49017/99 para 44 GC.

  • 70 Eckle v Germany No 8130/78 (1982) para 74.

  • 71 Yankov and Others v Bulgaria No 4570/05 (2010) para 23 and Aleksandr Zaichenko v Russia No 39660/02 (2010) para 42.

  • 72 Kaleja v Latvia No 22059/08 (2017) para 38. See also Schmid-Laffer v Switzerland No 41269/08 (2015).

  • 73 Funke v France No 10828/84 (1993).

  • 74 TK and SE v Finland No 38581/97 (2004) DA.

  • 75 Deweer v Belgium No 6903/75 (1980).

  • 76 No 29620/07 (2020) para 48.

  • 77 Frau v Italy No 12147/86 (1991) para 14.

  • 78 Heaney and McGuinness v Ireland No 34720/97 (2001) para 42.

  • 79 X v UK No 6728/74 (1978).

  • 80 X v Ireland No 9429/81 (1983).

  • 81 Eckle v Germany No 8130/78 (1982) para 76. The ‘prevailing approach’ is that leave-to-appeal proceedings are also included: Hansen v Norway No 15319/09 (2014) para 55. But see Valchev v Bulgaria Nos 47450/04 et al (2014) paras 68–72 DA.

  • 82 Gast and Popp v Germany No 29357/95 (2000).

  • 83 Eckle v Germany No 8130/78 (1982) para 78; Orchin v UK No 8435/78 (1982). An appeal against discontinuance is within Article 6: Zuckerstätter and Reschenhofer v Austria No 76718/01 (2004) DA.

  • 84 Moreira Ferreira v Portugal (No 2) No 19867/12 (2017) para 61 GC. See also Fischer v Austria No 27569/02 (2003) DA (retrial application after a Strasbourg Court violation). And see Husain v Italy No 18913/03 (2005) DA (challenge to committal order) and Aldrian v Austria No 16266/90 (1990) (conditional release): Article 6 not applicable. Article 6 does not apply to an application for an amnesty: Montcornet de Caumont v France No 59290/00 (2003) DA.

  • 85 Moreira Ferreira v Portugal (No 2), ibid para 65 and Guðmundur Andri Ástráðsson v Iceland No 26374/18 (2020) para 238 GC. See also Callaghan v UK No 14739/89 (1989).

  • 86 Assanidze v Georgia No 71503/01 (2004) GC (acquittee not released).

  • 87 Ringeisen v Austria No 2614/65 (1971) para 94 and König v Germany No 6232/73 (1978) para 95 PC.

  • 88 See Wade and Forsyth, Administrative Law, 11th edn, 2014, pp 568 ff.

  • 89 A particular factual situation may concern both a criminal charge and civil rights and obligations, although the case will normally be dealt with under one head only: see Albert and Le Compte v Belgium Nos 7299/75 and 7496/76 (1983) para 30 PC. Criminal proceedings may be determinative of ‘civil rights’ in some jurisdictions in criminal defamation cases or if a victim is joined as a civil party.

  • 90 Neumeister v Austria No 1936/63 (1968) (right to bail not a ‘civil right’ for this reason).

  • 91 See, eg, Ferrazzini v Italy No 44759/98 (2001) para 27 GC and Smirnov v Russia No 14085/04 (2006) DA.

  • 92 König v Germany No 6232/73 (1978) para 88 PC.

  • 93 As in the Feldbrugge and Deumeland cases in the next paragraph.

  • 94 In Benthem v Netherlands No 8848/80 (1985) para 34 PC, the Court declined the Commission’s invitation, para 91 Com Rep, to give guidance on the matter.

  • 95 König v Germany No 6232/73 (1978) para 90 PC. The wording quoted is phrased only in terms of ‘rights’, omitting ‘obligations’. This tends to happen because most of the cases under Article 6 are brought by claimants, not defendants. For ‘obligations’ cases, see, eg, Schouten and Meldrum v Netherlands Nos 19005/91 and 19006/91 (1994) and Cătaniciu v Romania No 22717/17 (2018).

  • 96 Ringeisen v Austria No 2614/65 (1971) para 94, quoted in the König case, ibid.

  • 97 König v Germany No 6232/73 (1978) para 90 PC.

  • 98 Feldbrugge v Netherlands No 8562/79 (1986) para 29 PC and Deumeland v Germany No 9384/81 (1986) para 63 PC. Cf König v Germany No 6232/73 (1978) PC.

  • 99 Cf Muyldermans v Belgium No 12217/86 (1991) para 56 Com Rep (F Sett before Court).

  • 100 See, eg, König v Germany No 6232/73 (1978) para 89 PC 9 (a doctor’s services were contractual, not a public service, so ‘civil’). See also Perez v France No 47287/99 (2004) GC.

  • 101 See, eg, Buchholz v Germany No 7759/77 (1981).

  • 102 See, eg, Golder v UK No 4451/70 (1975) PC (defamation).

  • 103 See, eg, Airey v Ireland No 6289/73 (1979) (separation) and Mizzi v Malta No 26111/02 (2006) (paternity).

  • 104 See, eg, Buchholz v Germany No 7759/77 (1981) (unfair dismissal).

  • 105 König v Germany No 6232/73 (1978) para 89 PC.

  • 106 As to the review required, see section 2.II.e, p 397.

  • 107 See, eg, Editions Périscope v France No 11760/85 (1992) and Stran Greek Refineries and Stratis Andreadis v Greece No 13427/87 (1994).

  • 108 Eg the obligation of a French public accountant to repay public monies lost by his negligence fell within Article 6, despite its public law dimensions, because of its pecuniary impact on the accountant: Martinie v France No 58675/00 (2004) DA. On surcharges on UK local authority officers, see Porter v UK No 15814/02 (2003) DA.

  • 109 Ferrazzini v Italy No 44759/98 (2001) para 29 GC.

  • 110 ibid para 25 GC.

  • 111 Sporrong and Lönnroth v Sweden Nos 7151/75 and 7152/75 (1982) PC. See also Raimondo v Italy No 12954/87 (1994) para 43 (confiscation) and Poiss v Austria No 9816/82 (1987) (land consolidation).

  • 112 For planning or building permission cases, see, eg, McGonnell v UK No 28488/95 (2000) and Chapman v UK No 27238/95 (2001) GC. For other land use cases, see, eg, Posti and Rahko v Finland No 27824/95 (2002) (fishing).

  • 113 Winterwerp v Netherlands No 6301/73 (1979) (mentally disabled person).

  • 114 See, eg, British-American Tobacco Co Ltd v Netherlands No 19589/92 (1995) (patent applications and rights) and Procola v Luxembourg No 14570/89 (1995) (milk levy).

  • 115 There may be an overlap between this right and the right to property: see, eg, in Benthem v Netherlands No 8848/80 (1985) para 36 PC.

  • 116 See, eg, Tre Traktörer Aktiebolag v Sweden No 10873/84 (1989) (sale of alcohol); Kingsley v UK No 35605/97 (2002) GC (gaming); Pudas v Sweden No 10426/83 (1987) (transport); König v Germany No 6232/73 (1978) PC (medical clinic); Benthem v Netherlands No 8848/80 (1985) (liquid petroleum gas); Hornsby v Greece No 18357/91 (1997) (private school).

  • 117 See, eg, König v Germany No 6232/73 (1978) PC (medicine); GS v Austria No 26297/95 (1999) (pharmacy); H v Belgium No 8950/80 (1987) (law); Thlimmenos v Greece No 34369/97 (2000) GC (accountancy); Guchez v Belgium No 10027/82 (1984) (architecture). See also Ekşioğlu and Mosturoğlu Nos 2006/13 and 10857/13 (2021) (sports club executives) and Wilson v UK No 36791/97 (1998) DA (company director).

  • 118 No 6232/73 (1978) PC.

  • 119 Benthem v Netherlands No 8848/80 (1985) PC. Cf Allan Jacobsson v Sweden No 10842/84 (1989); Nowicky v Austria No 34983/02 (2005); and Kraska v Switzerland No 13942/88 (1993).

  • 120 Article 6 applies only where a person has an arguable right in national law.

  • 121 No 18020/91 (1992). Cf H v France No 10073/82 (1989). See also Z v UK No 29392/95 (2001) GC.

  • 122 See Editions Périscope v France No 11760/85 (1992) para 40.

  • 123 Assenov v Bulgaria No 24760/94 (1998) and Balogh v Hungary No 47940/99 (2004) (assault); Baraona v Portugal No 10092/82 (1987) (illegal arrest); Veeber v Estonia (No 1) No 37571/97 (2002) (illegal search and seizure); Aït-Mouhoub v France No 22924/93 (1998) (police theft, forgery, etc); Kaukonen v Finland No 24738/94 (1997) (malicious prosecution).

  • 124 Aerts v Belgium No 25357/94 (1998) and Göç v Turkey No 36590/97 (2002) GC.

  • 125 Pelli v Italy No 19537/02 (2003) DA (‘Pinto law’).

  • 126 Stran Greek Refineries and Stratis Andreadis v Greece No 13427/87 (1994).

  • 127 Air Canada v UK No 18465/91 (1995).

  • 128 See, eg, Beaumartin v France No 15287/89 (1994) (claim for compensation under a treaty); Neves e Silva v Portugal No 11213/84 (1989) (official malpractice); and Sotiris and Nikos Koutras Attee v Greece No 39442/98 (1999) DA (refusal of state subsidy).

  • 129 Humen v Poland No 26614/95 (1999) para 57 GC. The payment of compensation must be as of right, not discretionary: Masson and Van Zon v Netherlands Nos 15346/89 and 15379/89 (1995).

  • 130 Göç v Turkey No 36590/97 (2002) GC and Werner v Austria No 21835/93 (1997).

  • 131 Lamanna v Austria No 28923/95 (2001).

  • 132 Dimitrios Georgiadis v Greece No 41209/98 (2000) and Humen v Poland No 26614/95 (1999) GC. See also Hałka and Others v Poland No 71891/01 (2002).

  • 133 Rolf Gustafson v Sweden No 23196/94 (1997) (a legal right) and August v UK No 36505/02 (2003) (ex gratia payment). Article 6 does not apply to discretionary state compensation for a natural disaster: Nordh v Sweden No 14225/88 (1990).

  • 134 No 8562/79 (1986) PC (employment sickness benefit).

  • 135 No 9384/81 (1986) PC (industrial injuries benefit).

  • 136 Schuler-Zgraggen v Switzerland No 14518/89 (1993) para 46 (invalidity pension). See also McGinley and Egan v UK Nos 21825/93 and 23414/94 (1998) (disability pension); Pauger v Austria No 16717/90 (1997) (widower’s pension); Grof v Austria No 25046/94 (1998) (maternity benefit). For cases of welfare assistance, see Salesi v Italy No 13023/87 (1993) (disability allowance for destitute persons); Tsfayo v UK, A 60860/00 (2006) (housing benefit); Eternit v France No 20041/10 (2012) DA (industrial injury benefit). Benefits in kind are included as well as financial benefits: Fazia Ali v UK No 40378/10 (2015) para 40 (right to accommodation). And see Woś v Poland No 22860/02 (2005) DA (forced labour compensation).

  • 137 Schuler-Zgraggen v Switzerland No 14518/89 (1993) para 46.

  • 138 See, eg, Giancarlo Lombardo v Italy No 12490/86 (1992) (public service pension). The rights in the Feldbrugge and Deumeland cases were so linked.

  • 139 Salesi v Italy No 13023/87 (1993). See also Stec v UK No 65731/01 (2005) DA.

  • 140 Salesi v Italy, ibid; and Mennitto v Italy No 33804/96 (2000) GC. See also Gaygusuz v Austria No 17371/90 (1996). In Fazia Ali v UK No 40378/10 (2015), the Court accepted that the applicant had a ‘right’ in English law to be housed. In Tomlinson and Others v Birmingham City Council [2010] UKSC 8, the UK Supreme Court had in the same case ruled otherwise because of the degree of discretion left to the authorities as to the particular accommodation.

  • 141 Olsson v Sweden (No 1) No 10465/83 (1988) PC. See also Keegan v Ireland No 16969/90 (1994) (adoption) and Eriksson v Sweden No 11373/85 (1989) PC (fostering).

  • 142 Ganci v Italy No 41576/98 (2003); Gülmez v Turkey No 16330/02 (2008) para 30; and Enea v Italy No 74912/01 (2009) GC.

  • 143 No 33197/09 (2012) paras 50–56.

  • 144 Athanassoglou v Switzerland No 27644/95 (2000) GC.

  • 145 ibid; and Okyay v Turkey No 36220/97 (2005).

  • 146 Laidin v France (No 2) No 39282/98 (2003) and Aerts v Belgium No 25357/94 (1998). Restrictions on freedom of movement short of deprivation of liberty, on attending public meetings, and on the use of mobile telephones may be civil rights as ‘personal rights’: De Tommaso v Italy No 43395/09 (2017) para 154 GC. But Article 6 does not apply to pre-trial detention cases within Article 5(4): Reinprecht v Austria 2005-XII.

  • 147 Mustafa v France No 63056/00 (2003) (choice of surname); Užukauskas v Lithuania No 16965/04 (2010) (state file on an individual); Alaverdyan v Armenia No 4523/04 (2010) DA (establishment of paternity).

  • 148 Tolstoy Miloslavsky v UK No 18139/91 (1995); Werner v Poland No 26760/95 (2001); and Gradinar v Moldova No 7170/02 (2008) paras 90–104.

  • 149 Ravon and Others v France No 18497/03 (2008) (search and seizure).

  • 150 Kenedi v Hungary No 31475/05 (2009) paras 33–34 (access to information). See also Loiseau v France No 46809/99 (2003); and Selmani and Others v FYRM No 67259/14 (2017) para 27 (right to report parliament).

  • 151 Reisz v Germany No 3201/96 (1997).

  • 152 AB Kurt Kellermann v Sweden No 41579/98 (2003) DA 161 and Lovrić v Croatia No 38458/15 (2017) para 55 (hunting association). As to political organizations, see n 168.

  • 153 Oršuš v Croatia No 15766/03 (2010) para 104 GC (primary) and Emine Araç v Turkey No 9907/02 (2008) (higher education).

  • 154 Oršuš v Croatia, ibid para 107 GC.

  • 155 Ivan Atanasov v Bulgaria No 12853/03 (2010).

  • 156 Cf Truckenbrodt v Germany No 49849/08 (2015) (‘majority’ of Convention rights are ‘civil’ rights).

  • 157 No 43395/09 (2017) para 151 GC.

  • 158 See, eg, Oršuš and Others v Croatia No 15766/03 (2010) para 104 GC (reversal of Court decision that the right to primary education was a matter of public law). The Court stated that ‘where a State confers rights which can be enforced by means of a judicial remedy, these can, in principle, be regarded as civil rights’: ibid para 105.

  • 159 Vilho Eskelinen v Finland No 63235/00 (2007) para 49 GC.

  • 160 Ferrazzini v Italy No 44759/98 (2001) para 26 GC.

  • 161 ibid para 27 (footnotes omitted). But in some contexts, the tendency has more recently been for the withdrawal of the state, involving deregulation and privatization.

  • 162 ibid para 28.

  • 163 ibid para 29.

  • 164 ibid. See also Emesa Sugar NV v Netherlands No 62023/00 (2005) DA (customs duties) and Smith v UK No 25373/94 (1995) (UK poll tax). Surcharges imposed for non-payment of tax may involve a ‘criminal charge’ within Article 6.

  • 165 Nos 19005/91 and 19006/91 (1994). Followed in Meulendijks v Netherlands No 34549/97 (2002).

  • 166 No 24194/94 (1997). See also Tapie v France No 32258/96 (1997); Asensio Serqueda v Spain No 23151/94 (1994); and Guliyev v Azerbaijan No 35584/02 (2004) DA. All kinds of election disputes fall outside Article 6: see, eg, Priorello v Italy No 11068/84 (1985) (challenge to local election).

  • 167 Hirst v UK No 74025/01 (2003) DA (prisoner’s right to vote).

  • 168 Yazar, Karataş, Aksoy and the People’s Labour Party (HEP) v Turkey No 22723/93 (2002) and Refah Partisi (the Welfare Party) and Others v Turkey Nos 41340/98 et al (2000) DA; Lovrić v Croatia No 38458/15 (2017). See also Reisz v Germany No 32013/96 (1997) DA and Papon v France No 344/04 (2005) DA.

  • 169 Cătaniciu v Romania No 22717/17 (2018) para 35.

  • 170 Fedotov v Russia No 5140/02 (2005) DA.

  • 171 Novotny v Czech Republic No 36542/97 (1998) DA.

  • 172 MN and Others v Belgium No 3599/18 (2020) para 137 DA GC (enforcement of visa judgment).

  • 173 No 39652/98 (2000) GC. Cf Panjeheighalehei v Denmark No 11230/07 (2009) DA.

  • 174 Maaouia v France, ibid paras 38 and 40. Article 6 does not apply to asylum cases: P v UK No 13162/87 (1987) and Taheri Kandomabadi v Netherlands No 6276/03 (2004) DA. Or to Schengen cases: Dalea v France No 964/07 (2010) DA.

  • 175 Nos 46827/99 and 46951/99 (2005) GC. The extradition of nationals is probably excluded also.

  • 176 Ferrazzini v Italy No 44759/98 (2001) para 26 GC.

  • 177 No 63235/00 (2007) para 62 GC. This test replaced the functional test in Pellegrin v France No 28541/95 (1999).

  • 178 See Pellegrin v France, ibid para 65.

  • 179 Kövesi v Romania No 3594/19 (2020) (chief anti-corruption prosecutor).

  • 180 Vanjak v Croatia No 29889/04 (2010).

  • 181 Fazliyski v Bulgaria No 40908/05 (2013).

  • 182 Savino and Others v Italy Nos 17214/05 et al (2009) para 78. See also Regner v Czech Republic No 35289/11 (2017) para 124 GC (civil servant’s security clearance).

  • 183 Baka v Hungary No 20261/12 (2016) para 104 GC. Cf Eminağaoğlu v Turkey No 76521/12 (2021) para 78. It was also not applicable in Spūlis and Vaškevičs v Latvia Nos 2631/10 and 12253/10 (2014) para 42 (senior civil servants).

  • 184 No 43572/18 (2022) para 326 GC. For other cases on the Polish judiciary reforms, see section 3.V.d, p 467.

  • 185 No 59773/00 (2007) DA. See also Spūlis and Vaškevičs v Latvia Nos 2631/10 and 12253/10 (2014) para 42 (senior civil servants: Article 6 not applicable). Article 6 did apply in Kuzmina v Russia No 15242/04 (2009) (ordinary pay claim by soldier).

  • 186 Schouten and Meldrum v Netherlands Nos 19005/91 and 19006/91 (1994) para 50.

  • 187 BBC v UK No 25798/94 (1996) DA. See also Van Vondel v Netherlands No 38258/03 (2006) DA and Burdov v Russia No 59498/00 (2002).

  • 188 Sergei Smirnov v Russia No 14085/04 (2006) DA. See also X v UK No 8208/78 (1978) (peerage).

  • 189 Nicolussi v Austria No 11734/85 (1987) and Zelisse v Netherlands No 12915/87 (1989).

  • 190 Schreiber and Boetsch v France No 58751/00 (2003) DA (challenge to a judge); X v Germany No 3925/69 (1970) (legal aid), but see Gutfreund v France No 45681/99 (2003) paras 39–44; B v UK No 10615/83 (1984) (lawyers’ costs); Shapovalov v Ukraine No 45835/05 (2012) and Mackay and BBC Scotland v UK No 10734/05 (2010) para 22 (no civil right to report court proceedings); and Truckenbrodt v Germany No 49849/08 (2015) para 17 (no civil right to take pictures in relation to court proceedings). On the disciplining of prisoners (which may involve a ‘criminal charge’), see McFeeley v UK No 8317/78 (1980) DA, now subject to Ganci v Italy No 41576/98 (2003).

  • 191 Klass v Germany No 5029/71 (1977) Com Rep and Association for European Integration and Human Rights and Ekimdzhiev v Bulgaria No 62540/00 (2007) paras 106–107. The question was left open by the Court in Kennedy v UK No 26839/05 (2010). But see Ravon and Others v France No 18497/03 (2008) (search and seizure of documents at home concerned the right to respect for the home).

  • 192 L v Sweden No 10801/84 (1988) Com Rep para 87.

  • 193 Woonbron Volkshuisvestingsgroep and Others v Netherlands No 47122/99 (2002) DA.

  • 194 LTC v Malta No 2629/06 (2007) DA.

  • 195 Boulois v Luxembourg No 37575/04 (2012) para 90 GC.

  • 196 Neves e Silva v Portugal No 11213/84 (1989) para 37. The right need only be ‘arguable’ when proceedings are commenced; changes in the law while they are pending are not relevant: Reid v UK No 33221/96 (2001) DA.

  • 197 National law includes EC law for member states: Papoulakos v Greece No 24960/94 (1995) DA. It also includes international law that is a part of the national legal system: Nait-Liman v Switzerland No 51357/07 (2018) para 108 GC (ratified treaty). Article 6 did not apply in Károly Nagy v Hungary No 56665/09 (2017) paras 76–77 GC because the applicant pastor’s claim for compensation against the Reformed Church of Hungary was a matter of ecclesiastical law, not state law.

  • 198 Pudas v Sweden No 10426/83 (1987) para 34 (granting a licence). Cf Boulois v Luxembourg No 37575/04 (2012) GC (prison leave).

  • 199 Regner v Czech Rep No 35289/11 (2017) para 105 GC.

  • 200 No 32303/13 (2018) para 29. (national courts violated the right to an oral hearing when rejecting the applicant’s challenge to the tender decision procedure). See also ITC Ltd v Malta No 2629/06 (2007) DA.

  • 201 No 8793/79 (1986) para 81 PC (owners deprived of property rights by statute: no remedy). Cf Powell and Rayner v UK No 9310/81 (1990) (statute excluded liability in tort for aircraft noise). See also McMichael v UK No 16424/90 (1995).

  • 202 No 17101/90 (1994) para 65.

  • 203 See Oerlemans v Netherlands No 12565/86 (1991).

  • 204 Le Compte, Van Leuven and De Meyere v Belgium Nos 6878/75 and 7238/75 (1981) para 45 PC.

  • 205 In Moreira de Azevedo v Portugal No 11296/84 (1990) para 66, the Court cast some doubt upon the very existence of the requirement (‘if indeed it does’ exist). Cf the joint dissenting opinion of six judges in W v UK No 9749/82 (1987) PC, and the dissenting opinion of Judge de Meyer in Kraska v Switzerland No 13942/88 (1993). But see Yankov v Bulgaria No 44768/10 (2019) para 26 DA (no dispute; applicant debarred automatically under a clearly worded law). See also Skorobogatykh v Russia No 37966/02 (2006) DA (general objection to HIV-infected prisoners: no ‘genuine or serious’ dispute).

  • 206 Albert and Le Compte v Belgium Nos 7299/75 and 7496/76 (1983) PC.

  • 207 Le Compte, Van Leuven and De Meyere v Belgium Nos 6878/75 and 7238/75 (1981) para 49 PC.

  • 208 Benthem v Netherlands No 8848/80 (1985) para 32 PC and Enea v Italy No 74912/01 (2009) para 99 GC.

  • 209 But a claim based upon enacted legislation of general application that affects the applicant is subject to Article 6: Posti and Rahko v Finland No 27824/95 (2002).

  • 210 Kaukonen v Finland No 24738/94 (1997). See also Kiryanov v Russia No 42212/02 (2005) DA.

  • 211 Kienast v Austria No 23379/94 (2003).

  • 212 Helmers v Sweden No 11826/85 (1991) PC.

  • 213 Nos 8543/79 et al (1986) PC. Cf Le Bihan v France No 63054/00 (2004) DA; Nowicky v Austria No 34983/02 (2005); and Kervoëlen v France No 35585/97 (2001).

  • 214 Ringeisen v Austria No 2614/65 (1971); Le Compte, Van Leuven and De Meyere v Belgium Nos 6878/75 and 7238/75 (1981) PC.

  • 215 See, eg, Guincho v Portugal No 8990/80 (1984).

  • 216 See, eg, H v France No 10073/82 (1989).

  • 217 No 2614/65 (1971).

  • 218 Nos 6878/75 and 7238/75 (1981) para 47 PC (emphasis added).

  • 219 Disciplinary proceedings that result in a lesser penalty than suspension (eg a fine) fall within Article 6 provided that interference with the exercise of the right (by suspension or termination) is ‘at stake’: A v Finland No 44998/98 (2004) DA and WR v Austria No 26602/95 (1999).

  • 220 No 27644/95 (2000) GC, following Balmer-Schafroth v Switzerland No 22110/93 (1997) PC. See also L’Erablière v Belgium No 49230/07 (2009) and Ivan Atanasov v Bulgaria No 12853/03 (2010). Contrast Okyay v Turkey No 36220/97 (2005).

  • 221 Gorraiz Lizarraga and Others v Spain No 62543/00 (2004).

  • 222 SARL du Parc d’activités de Blotzheim v France No 48897/99 (2003) DA. Cf Krafft and Rougeot v France No 11543/85 (1990).

  • 223 See, eg, Helmers v Sweden No 11826/85 (1991) PC. But Article 6 does not apply if the defamation prosecution is intended to punish: Rékási v Hungary No 315061/96 (1996).

  • 224 Perez v France No 47287/99 (2004) GC. See also Garimpo v Portugal No 66752/01 (2004) DA.

  • 225 Süssmann v Germany No 20024/92 (1996) GC; Gorraiz Lizarraga and Others v Spain No 62543/00 (2004); and Voggenreiter v Germany No 47169/99 (2004).

  • 226 The term ‘full jurisdiction’ was used in Albert and Le Compte v Belgium Nos 7299/75 and 7496/76 (1983) para 29 PC.

  • 227 Ramos Nunes de Carvalho e Sá v Portugal Nos 55391/13 et al (2018) para 178 GC. Cf Fazia Ali v UK No 40378/10 (2015) para 77. Even so, the Court’s judicial review requirement has presented problems for some states with a tradition of review or appeal within the executive branch of government, not by the courts. See, eg, Benthem v Netherlands No 8848/80 (1985) PC and Ravnsborg v Sweden No 14220/88 (1994).

  • 228 Ramos Nunes de Carvalho e Sá v Portugal, ibid.

  • 229 ibid para 214. Cf Tsfayo v UK No 60860/00 (1995) para 48.

  • 230 Ed: the Court emphasized that administrative decisions on ‘specialised issues’ based on ‘professional knowledge or experience’ or that involve ‘the exercise of administrative discretion’ should be given particular respect: ibid para 179.

  • 231 ibid.

  • 232 See ibid para 183 GC. Cf Oerlemans v Netherlands No 12565/86 (1991); Zumtobel v Austria No 12235/86 (1993); Sigma Radio Television Ltd v Cyprus Nos 32181/04 and 35122/05 (2011).

  • 233 No 19178/91 (1995).

  • 234 Ramos Nunes de Carvalho e Sá v Portugal Nos 55391/13 et al (2018) para 184. See also Kingsley v UK No 35605/97 (2002) para 32 GC; Oleksandr Volkov v Ukraine No 21722/11 (2013); Denisov v Ukraine No 76639/11 (2018) para 78 GC.

  • 235 No 5809/08 (2016) para 151 GC.

  • 236 Note that the Court had first decided by only nine votes to eight that Article 103 UN Charter, which provides that member state obligations under the UN Charter, including those resulting from a legally binding Security Council Resolution such as Resolution 1483, prevail over other conflicting treaty obligations, such as those in the Convention. The majority of nine did so on the basis that there was no conflict.

  • 237 See, eg, Guincho v Portugal No 8990/80 (1984). As in criminal cases, the question is mostly relevant in ‘trial within a reasonable time’ cases.

  • 238 Golder v UK No 4451/70 (1975) PC.

  • 239 König v Germany No 6232/73 (1978) PC. Cf Schouten and Meldrum v Netherlands Nos 19005/91 and 19006/91 (1994) para 62. See also Erkner and Hofauer v Austria No 9616/81 (1987) para 64.

  • 240 See Wiesinger v Austria No 11796/85 (1991).

  • 241 Silva Pontes v Portugal No 14940/89 (1994) para 33.

  • 242 Robins v UK No 22410/93 (1997) and Ziegler v Switzerland No 33499/96 (2002). Proceedings for the award of costs where the applicant had withdrawn her claim were held not to fall within Article 6 in Alsterlund v Sweden No 12446/86 (1988).

  • 243 König v Germany No 6232/73 (1978) para 98 PC. In Pretto and Others v Italy No 7984/77 (1983) para 30 PC, the ‘reasonable time’ guarantee ran until the Court of Cassation judgment was deposited with the court registry, whereupon it became public.

  • 244 Pugliese v Italy (No 2) No 11671/85 (1991) para 16. See also Lorenzi, Bernardini and Gritti v Italy No 13301/87 (1992).

  • 245 Bochan v Ukraine (No 2) No 22251/08 (2015) para 47 GC.

  • 246 ibid paras 46–47.

  • 247 No 18357/91 (1997) para 40. Hornsby only applies to final judgments; any appeal possibilities must be exhausted first: Ouzounis v Greece No 49144/99 (2002). Article 6 applies to a request for a stay of execution: Central Mediterranean Development Corp v Malta (No 2) No 18544/08 (2011) para 21. See also Roşiianu v Romania No 27329/06 (2014).

  • 248 Burdov v Russia No 59498/00 (2002). See also Liseytseva and Maslov v Russia Nos 39483/05 and 40527/10 (2014) (judgment debts).

  • 249 Teteriny v Russia No 11931/03 (2005) and Tchokontio Happi v France No 65829/12 (2015). See also Saccoccia v Austria No 69917/01 (2008) (Hornsby extends to the enforcement of foreign judgments).

  • 250 No 36220/97 (2005) para 73.

  • 251 Satka and Others v Greece No 55828/00 (2003).

  • 252 Romańczyk v France No 7618/05 (2010).

  • 253 Pini and Others v Romania No 78028/01 and 78030/01 (2004).

  • 254 Immobiliare Saffi v Italy No 22774/93 (1999) GC and Kyrtatos v Greece No 41666/98 (2003). See also Popov v Moldova (No 1) No 74153/01 (2005) (return of house to pre-Soviet owners).

  • 255 Antonetto v Italy No 15918/89 (2000).

  • 256 No 38064/97 (2005).

  • 257 Beshiri v Albania No 7352/03 (2006) paras 58–67.

  • 258 Immobiliare Saffi v Italy No 22774/93 (1999) GC. Cf Matheus v France No 62740/00 (2005).

  • 259 Fociac v Romania No 2577/02 (2005).

  • 260 Burdov v Russia No 59498/00 (2002). See also Jeličić v Bosnia and Herzegovina No 41183/02 (2006) para 42 (impact on public debt not an excuse). A requirement that a litigant pay the cost of enforcement violated the right of access to a court: Apostol v Georgia No 40765/02 (2006).

  • 261 Eg public housing: Shpakovskiy v Russia No 41307/02 (2005).

  • 262 The state must look for ‘alternative solutions’: Cingilli Holding AŞ and Cingillioğlu v Turkey Nos 31833/06 and 37538/06 (2015) para 41 (return of property to previous owners not possible).

  • 263 Burdov v Russia No 59498/00 (2002) para 35. The conduct of the parties may excuse some delay: Jasiūnienė v Lithuania No 41510/98 (2003). Failure to provide the applicant with a flat when its construction had been delayed through no fault of the state was not a violation: Volnykh v Russia No 10856/03 (2009).

  • 264 Dubenko v Ukraine No 74221/01 (2005). The state’s obligation to execute a judgment expeditiously increases with the applicant’s need: Dubenko v Ukraine (money to avoid bankruptcy) and Shmalko v Ukraine No 60750/00 (2004) (payment for medication).

  • 265 No 41510/98 (2003) para 30 (state disputed Strasbourg Court judgment). See also Hirschhorn v Romania No 29294/02 (2007) para 58.

  • 266 Yuriy Nikolayevich Ivanov v Ukraine No 40450/04 (2009). Judgments requiring compensation as redress for earlier court delays should be executed within six months: Cocchiarella v Italy No 64886/01 (2006) GC.

  • 267 No 33509/04 (2009) para 134. Cf Yuriy Nikolayevich Ivanov v Ukraine No 40450/04 (2009) (similar pilot judgment).

  • 268 Burdov v Russia No 59498/00 (2002).

  • 269 No 17056/06 (2009) para 85 GC. Cf Mercieca and Others v Malta No 21974/07 (2011) and RTBF v Belgium No 50084/06 (2011). See also Markass Car Hire v Cyprus No 51591/99 (2001) DA.

  • 270 No 4461/70 (1975) PC.

  • 271 The wording ‘à ce que sa cause soit entendue’ in the French text provided the clearest textual indication.

  • 272 See Khamidov v Russia No 72118/01 (2007) para 154 (Chechen courts closed for 15 months in the emergency: violation of right of access).

  • 273 See the separate opinions of Judges Verdross, Fitzmaurice, and Zekia. The last two of these judges noted, inter alia, that in some other instruments in which it had been intended to include the right of access, a separate provision had been inserted in addition to the equivalent of Article 6.

  • 274 By this term is meant the right of access to a court and the guarantees in Article 6 once proceedings are instituted: Golder v UK No 4461/70 (1975) para 36 PC.

  • 275 But the conditions of admissibility on appeal may be stricter: Zubac v Croatia No 40160/12 (2018) para 82 GC.

  • 276 See, eg, Sporrong and Lönnroth v Sweden Nos 7151/75 and 7152/75 (1982) PC (no appeal against expropriation permit) and Kövesi v Romania No 3694/19 (2020) (no remedy to challenge removal of chief anti-corruption prosecutor).

  • 277 No 1920/14 (2020) para 68. See also Posti and Rahko v Finland No 27824/85 (2002) paras 53–54.

  • 278 Nos 40575/10 and 67474/10 (2019) para 96 (Court of Arbitration for Sport: footballer and speed skater cases). See also Suda v Czech Republic No 1643/06 (2010) and Tabbane v Switzerland No 41069/12 (2016) para 27 DA.

  • 279 Deweer v Belgium No 6903/75 (1980). See also Anagnostopoulos v Greece No 54589/00 (2003).

  • 280 As the Court noted, the applicant could institute court proceedings without recourse to a solicitor.

  • 281 Zubac v Croatia No 40160/12 (2018) para 77. As in Zubac, the Court sometimes refers to a right to ‘practical and effective’ access, sometimes to just ‘effective’ access.

  • 282 No 6289/73 (1979). See Thornberry, 29 ICLQ 250 (1980).

  • 283 The Court emphasized the complexity of the proceedings, the need to examine expert witnesses, and the emotional involvement of the parties. Cf P, C and S v UK No 56547/00 (2002) (childcare and adoption proceedings; legal aid required). Contrast Webb v UK No 9353/81 (1983) DA.

  • 284 Ireland had made a reservation concerning criminal legal aid, which is expressly provided for in Article 6(3)(c). It did not anticipate the Airey judgment.

  • 285 But it was recognized in P, C and S v UK No 56547/00 (2002) para 90, that ‘limited public funds’ may require ‘a procedure of selection’.

  • 286 Airey v Ireland No 6289/73 (1979) para 26.

  • 287 ibid. Cf Aerts v Belgium No 25357/94 (1998); Staroszczyk v Poland No 59519/00 (2007); and Tabor v Poland No 12825/02 (2006).

  • 288 No 68416/01 (2005) para 61. See also Bakan v Turkey No 50939/99 (2007) (courts’ reasons for refusal questioned). In Faulkner v UK No 30308/96 (1999) (F Sett before the Court), Guernsey agreed to establish for the first time a civil legal aid system after the applicant was denied legal aid to bring proceedings for false imprisonment, etc.

  • 289 Gnahoré v France No 40031/98 (2000). See also Del Sol v France No 46800/99 (2002) and Stewart-Brady v UK Nos 27436/95 and 28406/95 (1997).

  • 290 W v Germany No 11564/85 (1985).

  • 291 Sujeeun v UK No 27788/95 (1996) DA.

  • 292 Granos Organicos Nacionales SA v Germany No 19508/07 (2012).

  • 293 Steel and Morris v UK No 68416/01 (2005) para 69.

  • 294 See McVicar v UK No 46311/99 (2002); Munro v UK No 10594/83 (1987); and Winer v UK No 10871/84 (1986).

  • 295 A v UK No 35373/97 (2002) para 98.

  • 296 Andronicou and Constantinou v Cyprus No 25052/94 (1997).

  • 297 Airey v Ireland No 6289/73 (1979) para 26.

  • 298 No 35373/97 (2002).

  • 299 No 36378/97 (2003) para 32. See also AB v Slovakia No 41784/98 (2003) and Renda Martins v Portugal No 50085/99 (2002) DA (refusal to act for lack of cooperation permissible).

  • 300 No 48778/99 (2002). Cf Aćimović v Croatia No 61237/00 (2003). See also Ganci v Italy No 41576/98 (2003) and Musumeci v Italy No 33695/96 (2005).

  • 301 Schmidt v Latvia No 22493/05 (2015) para 95 (spouse not informed that divorce proceedings had commenced; inadequate efforts to find address). See also Dilipak and Karakaya v Turkey Nos 7942/05 and 24838/05 (2014) para 80. And see Colozza v Italy, section 3.II.a, p 416 (criminal case) and Gankin and Others v Russia Nos 2430/06 et al (2016) para 39 (civil case).

  • 302 Sukhorubchenko v Russia No 69315/01 (2005) and Zavodnik v Slovenia No 53723/13 (2015) para 81.

  • 303 No 70930/01 (2008) para 78. See also Dunayev v Russia No 70141/01 (2007) para 36 (refusal to accept pleadings: no explanation).

  • 304 Kristiansen and Tyvik AS v Norway No 25498/08 (2013) para 57 (delay in patent procedures).

  • 305 Nos 54252/07 et al (2009).

  • 306 Marini v Albania No 3738/02 (2007) para 122–123. See also Dubinskaya v Russia No 4856/03 (2006) (claim registered but no record of any decision).

  • 307 Khlebik v Ukraine No 2945/16 (2017) para 79.

  • 308 De Geouffre de la Pradelle v France No 12964/87 (1992) para 34 (uncertainty as to the applicable procedure). See also Davran v Turkey No 18342/03 (2009); Stegarescu and Bahrin v Portugal No 46194/06 (2010); and Serghides and Christoforou v Cyprus No 44730/98 (2002) (applicant not told of land expropriation).

  • 309 See, eg, Bellet v France No 23805/94 (1995) para 37 (procedures for HIV compensation claims unclear). See also Beneficio Cappella Paolini v San Marino No 40786/98 (2004) (uncertainty as to competent court).

  • 310 Bĕleš and Others v Czech Republic No 47273/99 (2002) para 51 and Ivanova and Ivashove v Russia Nos 797/14 and 67755/14 (2017) para 57 (unduly strict interpretation of time limit for appeal). And see Sergey Smirmov v Russia No 14065/04 (2009) para 32 (unreasonable construction of residence requirement).

  • 311 Pérez de Rada Cavanilles v Spain No 28090/95 (1998) para 49. See also Yagtzilar and Others v Greece No 41727/98 (2001); Sotiris and Nikos Koutras ATTEE v Greece No 39442/98 (2000); Zvolsky and Zvolska v Czech Republic No 46129/99 (2002) para 54; Kadlec and Others v Czech Republic No 49478/99 (2004); and Saez Maeso v Spain No 77837/01 (2004).

  • 312 Zubac v Croatia No 40169/12 (2018) para 97 GC (statutory ad valoris threshold for appeals: no violation).

  • 313 ibid para 76. Cf Golder v UK No 4451/70 para 38 PC.

  • 314 ibid para 78. Cf Ashingdane v UK No 8225/78 (1985) para 57 and Stanev v Bulgaria No 36760/06 (2012) para 230 GC.

  • 315 Zubac v Croatia, ibid. Cf Lithgow v UK Nos 9006/80 et al (1986) para 194 PC. There was no ‘legitimate aim’ in Oorzhak v Russia No 4830/18 (2021) para 21.

  • 316 No 51357/07 (2018) GC. See Ryngaert, 100 Rivista de Diritto internationale 782 (2017) (on the Chamber judgment in Nait-Liman).

  • 317 The applicant lacked ‘sufficient connection’ with Switzerland for its ‘forum of necessity’ jurisdiction to apply. The need for such a connection did not exceed the respondent state’s ‘wide margin of appreciation’: ibid paras 205–216.

  • 318 ibid para 187. However, states were ‘encouraged’ by the Court to give victims access to their courts in cases such as the applicant’s: ibid para 218.

  • 319 See section 3.I.c, p 409.

  • 320 No 20261/12 (2016) para 121 GC.

  • 321 See Golder v UK No 4461/70 (1975) (prisoners, minors) PC; Luordo v Italy No 32190/96 (2003) (bankrupts); H v UK No 11559/85 (1985) (vexatious litigants); Carnduff v UK No 18905/02 (2004) DA (police informers).

  • 322 No 36760/06 (2012) para 243 GC (direct access not clearly provided; violation). Cf Shtukaturov v Russia No 44009/05 (2008); DD v Lithuania No 13469/06 (2012); and Nataliya Mikhaylenko v Ukraine No 49069/11 (2013). See also X and Y v Croatia No 5193/09 (2011) and AN v Lithuania No 17280/08 (2016).

  • 323 No 74438/14 (2019) para 99.

  • 324 No 38245/08 (2012).

  • 325 Holy Monasteries v Greece Nos 13092/87 and 13984/88 (1994) para 83. See also Sâmbata Bihor Greek Catholic Parish v Romania No 48107/99 (2010); Philis v Greece Nos 12750/87 et al (1991); and Związek Nauczycielstwa Polskiego v Poland No 42049/98 (2004).

  • 326 Canea Catholic Church v Greece No 25528/94 (1997).

  • 327 Arma v France No 23241/04 (2007) and Kohlhofer and Minarik v Czech Republic Nos 32921/03 et al (2009).

  • 328 Ligue du monde islamique et al v France Nos 36497/05 and 37172/05 (2009).

  • 329 Gillow v UK No 9063/80 (1986). A requirement that a litigant pay damages awarded at first instance before appealing may be acceptable depending on whether their means allow this: Annoni di Gussola v France Nos 31819/96 and 33293/96 (2000) and Gray v France No 27338/11 (2013) DA.

  • 330 For cases of excessive fees, see eg, Kreuz v Poland (No 1) No 28249/95 (2001); Urbanek v Austria No 35123/05 (2010); Cindrić and Bešlić v Croatia No 72152/13 (2016) para 122. Fees set after the hearing may also be a disproportionate restriction: Stankov v Bulgaria No 68490/07 (2007) para 53.

  • 331 Tolstoy Miloslavsky v UK No 18139/91 (1995); Aït-Mouhoub v France No 22924/93 (1998); and Grepne v UK No 17070/90 (1990).

  • 332 Les Travaux du Midi v France No 12275/86 (1991) and Toyaksi and Others v Turkey Nos 43569/08 et al (2010) DA. See also Sace Elektrik Ticaret Ve Sanayi AŞ v Turkey No 20577/05 (2013).

  • 333 Momčilović v Croatia No 11239/11 (2015).

  • 334 Stedman v UK No 29107/95 (1997).

  • 335 Arribas Anton v Spain No 16563/11 (2015). See also Papaioannou v Greece No 18880/15 (2016). See also Valchev v Bulgaria Nos 47450/04 et al (2014) paras 87–91 DA.

  • 336 Clunis v UK No 45149/98 (2001) DA.

  • 337 Dragan Kovačević v Croatia No 49281/15 (2022).

  • 338 Manners v UK No 37650/97 (1998) (Warsaw Convention limit).

  • 339 Peltier v France No 32872/96 (2002). See also Mortier v France No 42195/98 (2001); Liakopoulou v Greece No 20627/04 (2006); and Celice v France No 14166/09 (2012) (speeding fine: error by official).

  • 340 Assunção Chaves v Portugal No 61226/08 (2012) para 87.

  • 341 Farcaş v Romania No 32596/04 (2010) DA (no violation).

  • 342 Zylkov v Russia No 5613/04 (2011). See also Arlewin v Sweden No 22302/10 (2016) (no liability for defamation in TV programme broadcast from abroad).

  • 343 They may even be required by the principle of legal certainty: see Oleksandr Volkov v Ukraine hudoc (2013) para 145.

  • 344 Stubbings v UK Nos 2283/93 and 22095/93 (1996) para 51. For other time limit cases, see Miragall Escolano and Others v Spain Nos 38366/97 et al (2000); Zemanová v Czech Republic No 6019/03 (2005); and Mikulová v Slovakia No 64001/00 (2005).

  • 345 Mizzi v Malta No 26111/02 (2006) para 89 (six months from birth of applicant’s child).

  • 346 Neshev v Bulgaria No 40897/98 (2004) and Tsironis v Greece No 44584/98 (2001). See also Cañete de Goñi v Spain No 55782/00 (2002) and AEPI SA v Greece No 48679/99 (2002). And see Howald Moor v Switzerland Nos 52067/10 and 41072/11 (2014) (time limit for asbestos claim did not take account of delay in diagnosis); Sefer Yilmaz and Meryem Yilmaz v Turkey No 611/12 (2015); Kurşun v Turkey No 22677/10 (2018) para 103.

  • 347 Edificaciones March Gallego SA v Spain No 28028/95 (1998) and Kamenova v Bulgaria No 62784/09 (2018) para 54. But see Marc Brauer v Germany No 24062/13 (2016) para 43 (exception made for mentally ill applicant). But errors by the state must not disadvantage the applicant in meeting time limit: Platakou v Greece No 38460/97 (2001) paras 32–39.

  • 348 Trevisanato v Italy No 32610/07 (2016) (final summing-up paragraph required: no violation).

  • 349 National and Provincial Building Society et al v UK Nos 21319/93 et al (1997). See also D’Amico v Italy No 465586/14 (2022). Procedural changes do not infringe the right of access as there is a ‘generally recognized principle’ that they apply to pending cases: Brualla Gómez de la Torre v Spain No 26737/95 (1997).

  • 350 See, eg, Ryabykh v Russia No 52854/99 (2003).

  • 351 See section 3.II.k, p436.

  • 352 See section 2.II.b, p 394.

  • 353 See also Taylor v UK No 49589/99 (2003) DA; Mahon and Kent v UK No 70434/01 (2003) DA; and Mond v UK No 49606/99 (2003) DA.

  • 354 No 35373/97 (2002). See also Young v Ireland No 25646/94 (1996). Cf Esposito v Italy No 14031/88 (1997).

  • 355 A v UK, ibid para 83. The Court also noted that there was an alternative contempt of parliament remedy, but this was not crucial to its decision: see Zollmann v UK No 62902/00 (2003) DA.

  • 356 Cordova v Italy (No 2) No 45649/99 (2003) (senator’s statement at election meeting). See also Cordova v Italy (No 1) No 40877/98 (2003); De Jorio v Italy No 73936/01 (2004); CGIL and Cofferati v Italy No 46967/07 (2009).

  • 357 Syngelidis v Greece No 24895/07 (2010).

  • 358 Urechean and Pavlicenco v Moldova Nos 27756/05 and 41219/07 (2014) para 44 (President’s immunity ‘perpetual and absolute’: violation).

  • 359 McElhinney v Ireland No 31253/96 (2001) GC (Irish policeman injured by British soldier in border incident). Judges Rozakis, Caflisch, Cabral Barreto, Vajić, and Loucaides dissented on the ground that international law no longer imposed a duty on states to grant immunity in tort cases. See also Kalogeropoulou and Others v Greece and Germany No 59021/00 (2002) DA. State immunity—again based on international law—extends to the execution of judgments against state property: Manoilescu and Dobrescu v Romania and Russia No 60861/00 (2005) DA.

  • 360 Grosz v France No 14717/06 (2009) DA.

  • 361 No 37112/97 (2001) paras 37–38 GC (but trend in international and comparative law to limit state immunity in employment-related disputes noted).

  • 362 See also Wallishauser v Austria No 156/04 (2012) (state immunity rule on the service of documents).

  • 363 No 15869/02 (2010) GC. Cf Sabeh El Leil v France No 34869/05 (2011) GC; Wallishauser v Austria No 156/04 (2012); Oleynikov v Russia No 36703/04 (2013); Naku v Lithuania No 26126/07 (2016). See also Benkharbouche and Janoh v UK Nos 19059/18 and 19725/18 (2022). Fogarty was distinguished in Cudka as recruitment claims were one of the state immunity exceptions to jurisdiction still recognized by international law.

  • 364 Ndayegamiye and Dobrescu v Romania and Russia No 168474/12 (2019) para 57.

  • 365 No 35763/97 (2001) GC. See Bates, 3 HRLR (2003) and Voyakis, 52 ICLQ 279 (2003).

  • 366 Al-Adsani v UK, ibid para 54.

  • 367 ibid.

  • 368 See the dissenting opinion of Judges Rozakis and Caflisch, joined by Judges Wildhaber, Costa, Cabral Barreto, and Vajić. For further arguments, see the dissenting opinions of Judges Ferraro Bravo and Loucaides.

  • 369 But for a well-argued presentation of the problems, eg, of execution of judgments, that would have arisen were the dissenting judges to have prevailed, see the concurring opinion of Judge Pellonpää, joined by Judge Bratza.

  • 370 Nos 34356/06 and 40528/06 (2014). As to the immunity of the state itself, the Court was influenced by the ICJ ruling in the Jurisdictional Immunities of the State case (Germany v Italy), ICJ Rep 2012, p 99, to the same effect as Al-Adsani.

  • 371 Jones and Others v UK, ibid para 213.

  • 372 No 26083/94 (1999) GC para 72. See also Beer and Regan v Germany No 28934/95 (1999) GC (ESA case); Chapman v Belgium No 39619/06 (2013) DA para 56 (NATO); and Klausecker v Germany No 415/07 (2015) paras 105–106 DA (European Patent Office): alternative remedies a factor in each case.

  • 373 No 65542/12 (2013) para 154 DA.

  • 374 No 20390/92 (1998). Cf Devlin v UK No 29545/95 (2001) and Devenney v UK No 24265/94 (2002).

  • 375 See, eg, Markovic v Italy No 1398/03 (2006) GC (‘act of government’ doctrine) and Roche v UK No 32555/96 (2005) GC. The Court has sometimes declined to make it in cases in which the restriction is disproportionate, so that the outcome does not depend upon it. See, eg, the Ashingdane and Fayed cases. And see Lupeni Greek Catholic Parish and Others v Romania No 76943/11 (2016) para 100 GC.

  • 376 No 29392/95 (2001) GC. Cf TP and KM v UK No 28945/95 (2001) GC and DP and JC v UK No 38719/97 (2002).

  • 377 No 23452/94 (1998) GC.

  • 378 See Barrett v Enfield LBC [1999] 3 WLR 79, in which members of the House of Lords expressed their surprise at the Osman judgment.

  • 379 No 42527/98 (2001) GC.

  • 380 Deweer v Belgium No 6903/75 (1980) para 49. See also X v UK No 8233/78 (1979). Where the discontinuance of proceedings may imply guilt, there may be a breach of Article 6(2).

  • 381 X v UK No 5076/71 (1972).

  • 382 Hennings v Germany No 12129/86 (1992). Cf X v Germany No 4260/69 (1970).

  • 383 Ernst and Others v Belgium No 33400/96 (2003).

  • 384 Omar v France No 24767/94 (1998) GC and Papon v France No 54210/00 (2002). See also Eliazer v Netherlands No 38055/97 (2001) (no breach).

  • 385 Atanasova v Bulgaria No 72001/01 (2008).

  • 386 Deweer v Belgium No 6903/75 (1980) para 49; and Nordström-Janzon and Nordström-Lehtinen v Netherlands No 28101/95 (1996) (arbitration agreed, not court hearing).

  • 387 Deweer v Belgium, ibid. See also Marpa Zeeland v Netherlands No 46300/99 (2004).

  • 388 No 8917/05 (2009) GC.

  • 389 See Golder v UK No 4461/70 (1975) para 33 PC and Kudła v Poland No 30210/96 (2000) GC. See also Powell and Rayner v UK No 9310/81 (1990) and the joint separate opinion of Judges Pinheiro Farinha and De Meyer in W v UK No 9749/82 (1987).

  • 390 See De Geouffre de la Pradelle v France No 12964/87 (1992) para 37.

  • 391 See the implied rights considered in sub-section, pp 415ff.

  • 392 No 10590/83 (1988) para 89 PC.

  • 393 No 343/57 (1960) Com Rep para 52; CM Res DH (63).

  • 394 See, eg, Fatullayev v Azerbaijan No 40984/07 (2010) para 163 (Article 6(2)) and Luedicke, Belkacem and Koç v Germany No 6210/73 (1978) para 50 (Article 6(3)(e)) and the public pronouncement case discussed later.

  • 395 No 21980/04 (2017) para 113 GC. Cf Artico v Italy No 6694/74 (1980) para 32.

  • 396 As in the Simeonovi case, ibid para 145. See also Bernard v France No 22885/93 para 37 (Article 6(2) case). And see, eg, Benham v UK No 19380/92 (1996) para 64 GC.

  • 397 Eg Colloza v Italy No 9024/80 (1985) paras 26 and 33; Edwards v UK No 13071/87 (1992) paras 33–34; and Navalnyy and Ofitserov v Russia Nos 46632/13 and 28671/14 (2016) paras 102 and 120 (Article 6(2) and (3)(d) allegations: case considered just under Article 6(1)). See also Magnitskiy v Russia Nos 32631/09 and 53799/12 (2019) para 283 (‘inherent unfairness’ of criminal proceedings against deceased person).

  • 398 Vidal v Belgium No 12351/86 (1992) para 35.

  • 399 ibid para 144. Cf Doyle v Ireland, section 5.IV.b, p 483. See also the unfairness in the ‘proceedings as a whole’ requirements in Al-Khawaja Tahery v UK, section 5.V.b, p 491; Murtazaliyeva v Russia, section 5 V a, p 490; and Beuze v Belgium, section 5.IV.b, p 482.

  • 400 See Goss, Criminal Fair Trial Rights: Article 6 of the European Convention on Human Rights, 2014, pp 138–139; Samartzis, 21 HRLR 409 (2021); Trechsel, Human Rights in Criminal Proceedings, 2005, ch 10.

  • 401 No 36658/05 (2018), dissenting opinion para 71 GC. On the Murtazaliveya case (on Article 6(3)(d)), see section 5.V.a, p 490.

  • 402 Dombo Beheer BV v Netherlands No 14448/88 (1993) para 32.

  • 403 ibid.

  • 404 In some cases there are no such differences: see Nideröst-Huber v Switzerland No 18990/91 (1997) para 28 (right to adversarial proceedings).

  • 405 On the right to an oral hearing under Article 6(1), see section 3.III.b, p 440.

  • 406 No 9024/80 (1985) para 27. Cf Hermi v Italy No 18114/02 (2006) para 58 GC.

  • 407 See section 3.II.b, p 418.

  • 408 Ziliberberg v Moldova No 61821/00 (2005).

  • 409 Sejdovic v Italy No 56581/00 (2006) para 81 GC. For this reason, the legislature may discourage ‘unjustified absences’: ibid para 92.

  • 410 No 32435/06 (2010) (application for adjournment on health grounds refused; applicant’s counsel present).

  • 411 Khuzhin and Others v Russia No 13470/02 (2008) para 104.

  • 412 X v Sweden No 434/58 (1959).

  • 413 Muyldermans v Belgium No 12217/86 (1990) Com Rep, para 64 (F Sett before Court).

  • 414 X and Y v Croatia No 5193/09 (2011).

  • 415 Kovalev v Russia No 78145/01 (2007) para 37. See also Khuzhin and Others v Russia No 13470/02 (2008).

  • 416 No 30782/03 (2009) paras 34–48.

  • 417 Nos 27236/05 et al (2016) para 52. See also, eg, Igranov and Others v Russia Nos 42399/13 (2018) para 35.

  • 418 No 21272/03 (2010) para 98 GC. See also Marcello Viola v Italy no 45106/04 (2006) pars 63–67. Cf Yevdokimov and Others v Russia Nos 27236/05 et al (2016) para 43. And see Pönkä v Estonia No 64160/11 (2016) para 39 (court should have considered video link in civil case for prisoner abroad).

  • 419 No 36516/19 (2021) para 68. See also Pönkä v Estonia No 64160/11 (2016) para 39 (court should have considered a video link in civil case for prisoner abroad).

  • 420 For these, see section Ch 9, section 1, p 378.

  • 421 Sejdovic v Italy No 55681/00 (2006) para 99 GC On notification to the mentally incapacitated, see Vaudelle v France No 35683/97 (2001).

  • 422 Hermi v Italy No 18114/02 (2006) para 102 GC.

  • 423 Sibgatullin v Russia No 32165/02 (2009) (criminal prosecution).

  • 424 See Yakovlev v Russia No 722701/01 (2005) para 21 and Groschev v Russia No 69889/01 (2005) para 28 (civil cases).

  • 425 Brozicek v Italy No 10964/84 (1989) PC (criminal prosecution).

  • 426 Yavuz v Austria No 46549/99 (2004) para 49 (criminal prosecution).

  • 427 Zana v Turkey No 18954/91 (1997).

  • 428 FCB v Italy No 12151/86 (1991) para 33 (criminal prosecution; applicant in prison abroad). The court must check whether the applicant had the opportunity to apprise himself of the date of the hearing and the steps to be taken in order to attend: Hermi v Italy No 18114/02 (2006) para 76 GC.

  • 429 No 30900/02 (2003) DA.

  • 430 No 9024/80 (1985) para 29.

  • 431 ibid para 30.

  • 432 Sejdovic v Italy No 56581/00 (2006) para 82 GC. See also Medenica v Switzerland No 20491/92 (2001) DA and Jones v UK No 30900/02 (2003) DA.

  • 433 FCB v Italy No 12151/86 (1991) para 35.

  • 434 Sejdovic v Italy No 56581/00 (2006) para 99 GC.

  • 435 ibid para 82. A re-hearing that allows only new facts or evidence is insufficient: Sanader v Croatia No 66408/12 (2015) para 93.

  • 436 Sejdovic v Italy, ibid para 82. The destruction of the case file is not a good reason for not having a rehearing: Stoichkov v Bulgaria No 9808/02 (2005).

  • 437 A reasonable period of time to appeal is required: Sejdovic v Italy No 56581/00 (2006) GC.

  • 438 Dilipak and Karakaya v Turkey Nos 7942/05 and 24838/05 (2014) para 80.

  • 439 Sejdovic v Italy No 56581/00 (2006) para 82 GC; Einhorn v France No 71555/01 (2001); Demebukov v Bulgaria No 68020/01 (2008); and Medenica v Switzerland No 20491/92 (2001). Cf the European standard suggested in the Council of Europe Criteria Governing Proceedings held in the Absence of the Accused, CM Res (75) 11. It is for the state to have effective procedures in place to establish a waiver or an intention not to appear. Thus, there was a breach of Article 6 where the procedure for considering the applicant’s claim that his signature acknowledging receipt of the hearing notice had been forged was inadequate: Somogyi v Italy No 67972/01 (2004).

  • 440 Ninn-Hansen v Denmark No 28972/95 (1999) DA.

  • 441 Ensslin, Baader and Raspe v Germany Nos 7572/76 et al (1978) DA and Marguš v Croatia No 4455/10 (2014) para 90 GC.

  • 442 X v UK No 4798/71 (1972). See also Krakolinig v Austria No 33992/07 (2007) DA para 21 (no right to terminate criminal proceedings because of illness).

  • 443 See Colozza v Italy No 9024/80 (1985) para 117.

  • 444 See section 3.III.b, 440.

  • 445 No 16757/90 (1994) para 26. See also Timergaliyev v Russia No 40631/02 (2008) (hearing impairment: violation).

  • 446 No 24888/94 (1999) para 85 GC. Cf SC v UK No 60958/00 (2004) and Güveç v Turkey No 70337/01 (2009) paras 123–124. See also DD v Lithuania No 13469/06 (2012) paras 118–119 and Hasáliková v Slovenia No 39654/15 (2021) para 68 (allowance for mentally disability).

  • 447 The trial procedure was explained to him, he was shown the courtroom before the trial, and the hearings were shortened.

  • 448 See, eg, Mariya Alekhina and Others v Russia No 38004/12 (2018) para 171 (Pussy Riot band case: violation) and Yaroslav Belousov v Russia Nos 2653/13 and 60980/14 (2016) para 152 (security reasons may justify use). Separation in a glass cage may also violate Article 6(3)(b): see section 5.III, p 477. See also Ashot Harutyunyan v Armenia No 34334/04 (2010) para 138. And see Campbell v UK No 12323/86 (1988) (handcuffing: no violation).

  • 449 Pullicino v Malta No 45441/99 (2000) DA. Pre-trial limitations on access to the case file and the applicant’s notes may also raise issues of effective participation: Moiseyev v Russia No 62936/00 (2008). Cf Matyjek v Poland No 38184/03 (2007).

  • 450 Neumeister v Austria No 1936/63 (1968).

  • 451 See Sidhu, The Concept of Equality of Arms in Criminal Proceedings under Article 6 of the European Convention on Human Rights, 2017.

  • 452 Kress v France No 39594/98 (2001) para 72 GC. Total equality between the parties is not required so that publicly funded legal aid does not have to match funds provided privately by the other party: Steel and Morris v UK No 68416/01 (2005) para 62 GC.

  • 453 AB v Slovakia No 41784/98 (2003).

  • 454 There may also be an overlap with the right to adversarial proceedings in Article 6(1): see, eg, Užukauskas v Lithuania No 16965/04 (2010).

  • 455 Ofner and Hopfinger v Austria Nos 524/59 and 617/59 (1962) Com Rep para 46; CM Res DH (63) 1.

  • 456 No 17358/90 (1996). See also Zahirović v Croatia No 58590/11 (2013) para 48.

  • 457 No 38560/04 (2012) para 25. On the meaning and need for actual prejudice, see Sidhu (n 451) pp 103 ff.

  • 458 No 12005/86 (1991) PC. See also Zahirović v Croatia No 58590/11 (2013) paras 47–49 and Eftimov v FYRM No 59974/08 (2015) para 41. The role of the magistrates’ court’s clerk was not contrary to equality of arms: Mort v UK No 44564/98 (2001) DA.

  • 459 Cf Zhuk v Ukraine No 45783/05 (2010) (prosecutor, but not appellant, participated in appeal hearing). See also Zinin v Russia No 54339/09 (2021) para 66.

  • 460 No 2689/65 (1970).

  • 461 Borgers v Belgium No 12005/86 (1991) para 24 PC. Cf the reasoning in Brandstetter v Austria Nos 11170/84 et al (1991).

  • 462 See Kress v France No 39594/98 (2001) GC; Martinie v France No 58675/00 (2006) GC; Tedesco v France No 11950/02 (2007); Vermeulen v Belgium No 19075/91 (1996); and Lobo Machado v Portugal No 15764/89 (1996).

  • 463 Coëme v Belgium Nos 32492/96 et al (2000) para 102.

  • 464 No 62936/00 (2008).

  • 465 Non-disclosure is considered in section 3.II.d, p 422, on the right to adversarial proceedings. See also Bendenoun v France No 12547/86 (1994) and Kuopila v Finland No 27752/95 (2000). On the handing over of evidence for scientific testing, see Korellis v Cyprus No 54528/00 (2003).

  • 466 Matyjek v Poland No 38184/03 (2007) (lustration proceedings). See also Kikabidze v Georgia No 57642/12 (2021) para 42.

  • 467 Mirilashvili v Russia No 6293/04 (2008).

  • 468 Perić v Croatia No 34499/06 (2008).

  • 469 No 6005/08 (2019) paras 58–60. For the Murtazaliyeva test, see section 5.V.a, p 490.

  • 470 Makhfi v France No 59335/00 (2004). For other criminal cases on equality of arms, see Blastland v UK No 12045/86 (1987); U v Luxembourg No 10140/82 (1985); Kremzow v Austria No 12350/86 (1993); Monnell and Morris v UK Nos 9562/81 and 9818/82 (1987); and Grande Stevens v Italy Nos 18640/10 et al (2014) paras 117–118, 123.

  • 471 Brandstetter v Austria No 11170/84 (1991) para 61.

  • 472 See Matytsina v Russia No 58428/20 (2014) para 207; Poletan and Azirovik v FYRM Nos 26711/07 et al (2016) para 84; JM and Others v Austria Nos 61503/14 et al (2017) para 128; and Hamzagić v Croatia No 68437/13 (2021) para 43.

  • 473 Komanický v Slovakia No 32106/96 (2002).

  • 474 Hentrich v France No 13616/88 (1994) para 56.

  • 475 Schuler-Zgraggen v Switzerland No 14518/89 (1993) and Užukauskas v Lithuania No 16965/04 (2010). But see Valchev v Bulgaria Nos 47450/04 et al (2014) See also H v France No 10073/82 (1989); Yvon v France No 44962/98 (2003).

  • 476 De Haes and Gijsels v Belgium No 19983/92 (1997).

  • 477 Dombo Beheer BV v Netherlands No 14448/88 (1993). See also Ruiz-Mateos v Spain No 12952/87 (1993); PC; and Ankerl v Switzerland No 17748/91 (1996).

  • 478 Sara Lind Eggertsdóttir v Iceland No 31930/04 (2007) para 47.

  • 479 See Schuler-Zgraggen v Switzerland No 14518/89 (1993). For other civil cases, see H v France No 10073/82 (1989); Yvon v France No 44962/98 (2003).

  • 480 Varnima Corp International SA v Greece No 48906/06 (2009) and Dacia SRL v Moldova No 3052/04 (2008).

  • 481 Stankiewicz v Poland No 46917/99 (2006).

  • 482 See, eg, Stran Greek Refineries v Greece No 13427/87 (1994) and Arras v Italy No 17972/07 (2012).

  • 483 Vermeulen v Belgium No 19075/91 (1996) para 33 GC. Cf Barberà, Messegué and Jabardo v Spain Nos 10588/83 et al (1988) paras 78, 89 PC. See also Feldbrugge v Netherlands No 8562/79 (1986) para 44 PC (access to case file); Georgios Papageogiou v Greece No 59506/00 (2003) (access to cheques allegedly forged).

  • 484 See Nideröst-Huber v Switzerland No 18990/91 (1997) para 24.

  • 485 These guarantees apply to civil proceedings under the rights to adversarial proceedings and equality of arms: see Wierzbicki v Poland No 24541/94 (2002). See also Leas v Estonia No 59577/08 (2012) para 80.

  • 486 Walston (No 1) v Norway No 37372/97 (2003) para 58 and Bajić v North Macedonia No 2833/13 (2021) para 59.

  • 487 Murtazaliyeva v Russia No 36658/05 (2018) para 91 GC (criminal case). It is insufficient that the material is on file at the court to be consulted: Göç v Turkey No 36590/97 (2002) GC. See also HAL v Finland No 38267/97 (2004). However, a party must use all available procedures for obtaining disclosure: McGinley and Egan v UK Nos 21825/93 and 23414/94 (1998).

  • 488 Murtazaliyeva v Russia, ibid.

  • 489 Edwards and Lewis v UK Nos 39647/98 and 40461/98 (2004) para 46 GC. This general disclosure obligation is sometimes formulated by the Court as a separate fair hearing requirement.

  • 490 Matanović v Croatia No 2742/12 (2017) paras 178–187 (CD recordings).

  • 491 Rowe and Davis v UK No 28901/95 (2000) GC; Jasper v UK No 27052/95 (2000) GC; Fitt v UK No 29777/96 (2000) GC; Dowsett v UK No 39482/98 (2003); Edwards and Lewis v UK Nos 39647/98 and 40461/98 (2004) GC; and Mansell v UK No 60590/00 (2003) DA. See also Edwards v UK No 13071/87 (1992), in which the police failed to inform the defence of material evidence (fingerprints, failure to identify the accused) where there was no public interest immunity claim: no breach as any possible unfairness was rectified on appeal. Cf Botmeh and Alami v UK No 15187/03 (2007). In Donohoe v Ireland No 19165/08 (2013), the Court applied the Al-Khawaja test, on which see section 5.V.b, p 491, to the ‘withholding’ situation, not Rowe and Davis: see the criticism of this approach by Judge Lemmens in his concurring opinion.

  • 492 Edwards and Lewis v UK, ibid para 46.

  • 493 No 27052/95 (2000) GC. Cf Fitt v UK No 29777/96 (2000) GC. The procedure was introduced after a breach of Article 6 was found in Rowe and Davis v UK No 28901/95 (2000) GC, in which the prosecution withheld evidence that a key witness was a paid informer without informing the trial judge. In contrast with Edwards and Lewis v UK Nos 39647/98 and 40461/98 (2004) para 46 GC, the unfairness in Rowe and Davis could not be rectified on appeal.

  • 494 Nos 39647/98 and 40461/98 (2004) GC.

  • 495 On the possible use of special counsel to represent the interests of the accused in the light of Edwards and Lewis, see R v H and C [2004] 2 WLR 335, [2004] UKHL 3.

  • 496 No 35289/11 (2017) para 161 GC.

  • 497 ibid para 160. In their joint partly dissenting opinion, Judges Raimondi, Sicilianos, Spano, Ravarani, and Pastor Vilanova argued that ‘the total non-disclosure … of the reasons underlying the decision … makes the organisation of his defence almost impossible’.

  • 498 For cases on the role of the avocat géneral or commissiare du gouvernement in appeals in civil law jurisdictions raising adversarial proceedings and related issues, see section 3.II.b, p 419.

  • 499 No 9783/82 (1989) para 102. Cf Brandstetter v Austria Nos 11170/84 et al (1991). See also Ferreira Alves v Portugal No 25053/05 (2007).

  • 500 Cf J v Switzerland No 13467/87 (1989) DA (F Sett) in which, unknown to the accused, a conviction was based on reports obtained after the hearing.

  • 501 No 16424/90 (1995). Cf Feldbrugge v Netherlands No 8562/79 (1986) PC.

  • 502 No 21497/93 (1997). Cf Cottin v Belgium No 48386/99 (2005). See also Augusto v France 2007-XX (non-communication of medical report) and Dağtekin and Others v Turkey No 71665/01 (2007) (security report withheld).

  • 503 See, eg, Hämäläinen v Finland No 351/02 (2004) DA (rules as to burden of proof in civil cases).

  • 504 No 10862/84 (1988) para 46 PC. Cf Moreira Ferreira v Portugal (No 2) No 19867/12 (2017).

  • 505 Khan v UK No 35394/97 (2000) para 34. Cf Jalloh v Germany No 54810/00 (2006) para 94 GC and Erkapić v Croatia No 51198/08 (2013).

  • 506 López Ribalda and Others v Spain Nos 1874/13 and 8567/13 (2019) para 152 GC (Schenk approach applied to shop employees dismissal for theft using illegal video-surveillance recordings: no violation).

  • 507 Khan v UK No 35394/97 (2000) para 37. Cf PG and JH v UK No 44787/98 (2001) and Lee Davies v Belgium No 18704/05 (2009). See also Parris v Cyprus No 56354/00 (2002) DA (illegal post-mortem: no breach).

  • 508 See Ch 11, section 4.VI, p 539.

  • 509 Jalloh v Germany No 54810/00 (2006) para 105 GC. ‘Real evidence’ is tangible evidence.

  • 510 Gäfgen v Germany No 22978/05 (2010) paras 166, 173 GC. See also Turbylev v Russia No 4722/09 (2015).

  • 511 No 8139/09 (2012) para 273 (allegations of torture).

  • 512 ibid paras 263, 267.

  • 513 No 649/08 (2012) paras 85, 88 (statements obtained in interviews in Morocco; required guarantees absent).

  • 514 The Court’s reluctance to intervene in such cases was apparent in Ferrantelli and Santangelo v Italy No 19874/92 (1996).

  • 515 See Latimer v UK No 12141/04 (2005) DA and G v UK No 9370/81 (1983).

  • 516 Cornelis v Netherlands No 994/03 (2004).

  • 517 X v Austria No 2676/65 (1967).

  • 518 Alberti v Italy No 12013/86 (1989). But the admission of photocopied evidence must be subjected to strict scrutiny: Buzescu v Romania No 61302/00 (2005).

  • 519 Barberà, Messegué and Jabardo v Spain Nos 10588/83 et al (1988) para 68 PC. Cf Wierzbicki v Poland No 24541/94 (2002).

  • 520 Waldberg v Turkey No 22909/93 (1995) DA. Cf Camilleri v Malta No 51760/99 (2000) DA.

  • 521 See Sommerfeld v Germany No 31871/96 (2003) GC (Article 8 case). Cf Accardi v Italy No 30598/02 (2005). For exceptions, see Elsholz v Germany No 25735/94 (2000) GC; Schlumpf v Switzerland No 29002/06 (2009); and Balsytė-Lideikienė v Lithuania No 72596/01 (2008).

  • 522 Bykov v Russia No 4378/02 (2009) para 90 GC. See also Sakit Zahidov v Azerbaijan No 51164/07 (2016) para 48 and Horvatić v Croatia No 366044/09 (2013) para 90.

  • 523 See section 3.II.d, p 422.

  • 524 PK v Finland No 37442/97 (2002) DA.

  • 525 ibid. See also Mellors v UK No 57836/00 (2003) DA and Škaro v Croatia No 6962/13 (2016) para 29.

  • 526 Cutean v Romania No 53150/12 (2014). See also Cerovšek and Božičnik v Slovenia Nos 68939/12 and 68949/12 (2017) para 43.

  • 527 Pitkänen v Finland No 30508/96 (2004) para 59.

  • 528 Nos 50541/08 et al (2016) para 266 GC.

  • 529 Saunders v UK No 19187/91 (1996) para 68 GC. It is also closely linked to the presumption of innocence: ibid.

  • 530 Saunders v UK, ibid para 69 GC. The right to silence is a part of the larger concept of freedom from self-incrimination, which includes incrimination through the use of the ‘compulsory powers’ referred to, which fall within Article 8 of the Convention. Although Article 6 is mostly only about the right to silence, the general term is used in this chapter as well as the right to silence.

  • 531 Ibrahim v UK Nos 50541/08 et al (2016) para 268. Cf Aleksandr Zaichenko v Russia No 39660/02 (2010) para 54. See also H and J v Netherlands Nos 978/09 and 992/09 (2014) (statements made during application for asylum later used in prosecution for torture: no violation).

  • 532 Jalloh v Germany No 54810/00 (2006) para 111 GC.

  • 533 No 10828/84 (1993) para 44. See also JB v Switzerland No 31827/96 (2001) and Bajić v North Macedonia No 833/13 (2021).

  • 534 No 54810/00 (2006) GC. Cf Gäfgen v Germany No 22978/05 (2010) para 178 GC (no breach of freedom from self-incrimination).

  • 535 See Jalloh v Germany No 54810/00 (2006) GC. See also Austria v Italy No 778/60 (1963) Com Rep; CM Res DH (63) 3.

  • 536 See Murray (John) v UK No 18731/91 (1996) para 47 GC. See also Serves v France No 20225/92 (1997) (applicant obliged to give evidence in the preliminary investigation of a fellow suspect for the same murder).

  • 537 Saunders v UK No 19187/91 (1996) GC.

  • 538 Funke v France No 10828/84 (1993).

  • 539 ibid.

  • 540 Heaney and McGuiness v Ireland No 34720/97 (2000).

  • 541 No 1466/07 (2010).

  • 542 ibid para 54. See also Simeonovi v Bulgaria No 21980/04 (2017) para 119 GC and Ibrahim and Others v UK Nos 50541/08 et al (2016) GC para 272.

  • 543 Condron v UK No 35718/97 (2000).

  • 544 No 48539/99 (2002). The Court stressed that the informer could be seen as a state agent whose questioning was the equivalent of interrogation. Contrast A v Germany No 12127/86 (1986) DA.

  • 545 No 4378/02 (2009) GC. Cf Heglas v Czech Republic No 5935/02 (2007).

  • 546 No 18731/91 (1996) GC. See also O’Donnell v UK No 16667/10 (2015) paras 48–51 (allowing jury to draw adverse inferences from accused’s failure to give evidence at trial not a violation given, inter alia, the judge’s clear and detailed directions to the jury).

  • 547 Although not arrested, the applicant in Funke was considered to be ‘charged’ as being ‘substantially affected’ by the allegation made against him: see Weh v Austria No 38544/97 (2004) para 52. The applicant’s death forestalled his prosecution for the substantive offence. For criticism of the Funke case, see Naismith, 3 EHRLR 229 (1997) and Stressens, ELR Human Rights Survey 45 (1996).

  • 548 Murray (John) v UK No 18731/91 (1996) para 49 GC. The Court had not used ‘very essence’ language in Funke. The severity of the sanction is a relevant factor in deciding whether the ‘very essence’ of the right is destroyed: Allen v UK No 76574/01 (2002) DA (a small fine: no breach). In Heaney and McGuiness v Ireland No 34720/97 (2000), no distinction was drawn between accumulated fines (Funke) and a six-month prison sentence (Heaney and McGuiness).

  • 549 No 35718/97 (2000) para 61. Condron has been applied in, eg, Beckles v UK No 44652/98 (2002); Smith v UK No 64714/01 (2002) DA; and Adetoro v UK No 46834/06 (2010).

  • 550 No 34720/97 (2000) para 48. See Ashworth, Crim LR 482 (2000). See also Shannon v UK No 6563/03 (2005).

  • 551 No 54810/00 (2006) para 101 GC. For the facts, see section 3.II.g, p 428. See also Schmid-Laffer v Switzerland No 41269/08 (2015) para 39 DA.

  • 552 No 34720/97 (2000) paras 55–58.

  • 553 Nos 15809/02 and 25624/02 (2007) para 62 GC.

  • 554 ibid para 57.

  • 555 As to the second criterion, there were sufficient procedural safeguards.

  • 556 O’Halloran and Francis v UK Nos 15809/02 and 25624/02 (2007) para 62 GC.

  • 557 No 76574/01 DA. Contrast JB v Switzerland No 31827/96 (2001), in n 533.

  • 558 Contrast the Saunders case in the next paragraph.

  • 559 For other possible examples, see Vasileva v Denmark No 52792/99 (2003) (giving one’s name in some circumstances) and Shannon v UK No 6563/03 (2005) para 38 (requirement to attend an interview).

  • 560 No 38544/97 (2004).

  • 561 ibid para 42.

  • 562 ibid para 43.

  • 563 No 19187/91 (1996) GC.

  • 564 No 39660/02 (2010) para 55.

  • 565 Veselov and Others v Russia Nos 23200/10 et al (2012) para 89. Cf Ramanauskas v Lithuania No 74420/01 (2007) para 54 GC. Incitement may be prompting the crime (eg by making a test purchase of drugs: Khudobin v Russia No 59696/00 (2006)) or something more, such as pressure, threats, or bribes (eg Pareniuc v Moldova No 17953 (2014) para 117).

  • 566 See the summaries of the two tests in Matanović v Croatia No 2742/12 (2017) paras 122–130 and Tchokhonelidze v Georgia No 31536/07 (2018) paras 44–46.

  • 567 Ramanauskas v Lithuania No 74420/01 (2007) GC para 70. A guilty plea cannot eradicate the effects of the incitement: ibid paras 21, 72.

  • 568 No 25829/94 (1998).

  • 569 The Court looks for ‘objective suspicions’ of criminal activity: Ramanauskas v Lithuania, ibid para 56. Cf Vanyan v Russia No 53209/99 (2005) and Eurafinacom v France No 58753/00 (2004).

  • 570 Cf Khudobin v Russia No 59696/00 (2006) para 135. The Court has ‘emphasised the need for a clear and foreseeable procedure for authorising investigative measures, as well as their proper supervision’ by a court (preferably) or other independent means: Akbay and others v Germany Nos 40495/15 et al (2020) para 118.

  • 571 No 74420/01 (2007) GC.

  • 572 Nos 7614/09 and 30863/10 (2015) paras 35–46. Cf Milinienė v Lithuania No 74355/01 (2008); Sequeira v Portugal No 73557/01 (2003) DA; Eurofinacom v France No 58753/00 (2004) DA.

  • 573 Bannikova v Russia No 18757/06 (2010) para 69. But police activities that extend the ‘scope or scale’ of the ‘joined’ crime may be incitement: Grba v Croatia No 47074/12 (2017) para 102.

  • 574 Matanović v Croatia No 2742/12 (2017) para 144.

  • 575 Akbay and others v Germany Nos 40495/15 et al (2020) para 119.

  • 576 Ramanauskas v Lithuania No 74420/01 (2007) para 69. Cf Bannikova v Russia No 18757/06 (2010) para 54 and Matanović v Croatia No 2742/12 (2017) paras 125–129. Mitigation of sentence is not a sufficient ‘consequence’: Akbay and others v Germany Nos 40495/15 et al (2020) para 124.

  • 577 Tchokhonelidze v Georgia No 31536/07 (2018) para 46 (requirements not correctly applied: admission of incitement evidence was an Article 6(1) violation).

  • 578 Akbay and others v Germany Nos 40495/15 et al (2020) paras 132–139. Mitigation of sentence is not sufficient: Akbay and others v Germany Nos 40495/15 et al (2020); Furcht v Germany No 54648/09 (2014) para 124.

  • 579 No 67537/01 (2004) DA.

  • 580 Zielinski and Pradal & Gonzalez and Others v France Nos 24846/94 et al (2011) para 57 GC. It is sufficient for a breach that the legislation is only a subsidiary reason for the judgment: Anagnostopoulos and Others v Greece No 39374/98 para 21.

  • 581 No 13427/87 (1994) paras 46, 49. See also Scordino v Italy (No 1) No 36813/97 (2006) GC. And see Koivusaari and Others v Finland No 20690/06 (2010) DA (legislation did not affect the case outcome: no breach).

  • 582 Vezon v France No 66018/01 (2006) and Arras and Others v Italy No 17972/07 (2012).

  • 583 Forrer-Niedenthal v Germany No 47316/99 (2003) (furthering German reunification); Gorraiz Lizarraga and Others v Spain No 62543/00 (2004) (need for regional planning). See also National and Provincial Building Society et al v UK Nos 21319/93 et al (1997) (public interest in clarifying tax law and securing tax payments) and OGIS-Institut Stanislas et al v France Nos 42219/98 and 54563/00 (2004).

  • 584 Maggio and Others v Italy Nos 46286/09 et al (2011).

  • 585 Preda and Dardari v Italy Nos 28160/95 and 28382/95 (1999).

  • 586 Hadjianastassiou v Greece No 12945/87 (1992). See also Karakasis v Greece No 38184/97 (2000) and Hirvisaari v Finland No 49684/99 (2001).

  • 587 Van de Hurk v Netherlands No 16034/90 (1994) para 59. See also Quadrelli v Italy No 28168/95 (2000) and Jokela v Finland No 28856/95 (2002) And see Carmel Saliba v Malta No 24221/13 (2016) para 73.

  • 588 Tatishvili v Russia No 1509/02 (2007).

  • 589 No 78411/11 (2017) para 61.

  • 590 Moreira Ferreira v Portugal (No 2) No 19867/12 (2017) para 84 GC. Cf García Ruiz v Spain No 30544/96 (1999) para 26 GC.

  • 591 Moreira Ferreira v Portugal (No 2), ibid. Cf Rostomashvili v Georgia No 13185/07 (2018) para 59 and Loizides v Cyprus No 31029/15 (2022).

  • 592 Čivinskaitė v Lithuania No 21218/12 (2020) para 143. See also Ruiz Torija v Spain No 18390/81 (1994) para 30 and Petrović v Croatia No 18116/15 (2018) para 43.

  • 593 Georgiadis v Greece No 21522/93 (1997).

  • 594 De Moor v Belgium No 16997/90 (1994).

  • 595 Dulaurans v France No 34553/97 (2000) (appeal rejected solely on mistaken ground that the argument was a new one).

  • 596 Ajdarić v Croatia No 20883/09 (2011). See also Zhang v Ukraine No. 6970/15 (2018) para 73 (failure to address serious flaws in prosecution witness evidence).

  • 597 Pronina v Ukraine No 63566/00 (2006) para 25.

  • 598 Moreira Ferreira v Portugal (No 2) No 19867/12 (2017) para 84 GC.

  • 599 Cerovšek and Božičnik v Slovenia Nos 68939/12 and 68949/12 (2017) (judge had retired before giving reasons; violation).

  • 600 No 926/05 (2010) paras 90, 92 GC. See Roberts, 11 HRLR 213 (2011). See also Agnelet v France No 61198/08 (2013) and Legillon v France No 53406/13 (2013) (insufficient indication why accused guilty in Agnelet, sufficient in Legillon); and Matis v France No 43699/13 (2015) DA (new French law: no violation).

  • 601 No 35863/10 (2011) DA. For pre-Taxquet cases, see Papon v France (No 2) No 54210/00 (2001) DA; Saric v Denmark (1999) DA; and Planka v Austria No 25852/94 (1996) DA.

  • 602 No 34238/09 (2016) para 81 GC.

  • 603 García Ruiz v Spain No 30544/96 (1999) GC.

  • 604 Helle v Finland No 20772/92 (1997). See also Sakkapoulos v Greece No 61828/00 (2004). More reasoning is required from the appeal court when the lower court has failed to give reasons: Boldea v Romania No 19997/02 (2007) paras 32–34. See also Hansen v Norway No 15319/09 (2014) para 65.

  • 605 Lindner and Hammermayer v Romania No 3567/97 (2002).

  • 606 See X v Germany No 8769/79 (1981) DA. Fines for a vexatious appeal may not require detailed justification: Les Travaux du Midi v France No 12275/86 (1991) and GL v Italy No 15384/89 (1994) DA.

  • 607 Sawoniuk v UK No 63716/00 (2001) (House of Lords refused leave to appeal without reasons; reasons on the merits in Court of Appeal judgment sufficient) and Gorou v Greece (No 2) No 12686/03 (2009) GC.

  • 608 Dhahbi v Italy No 17120/09 (2014) para 31.

  • 609 No 55385/14 (2018) para 50. In Repcevirág Szövetkezet v Hungary No 70750/14 (2019) para 58 ‘implicit reasoning’ was sufficient. See also Sanofi Pasteur v France No 25137/16 (2020) paras 68–72.

  • 610 No 28342/95 (1999) para 61 GC.

  • 611 See, eg, Tregubenko v Ukraine No 61333/00 (2004) para 36 (deputy chairman, Supreme Court). See also Ryabykh v Russia No 52854/99 (2003) paras 51–57 (regional court president); Roşca v Moldova No 5267/02 (2005) (public prosecutor). And see Trapeznikov and Others v Russia Nos 5623/09 et al (2016) (reformed Russian system: no violation).

  • 612 Tregubenko v Ukraine, ibid. Cf Sovtransavto Holding v Ukraine No 48553/99 (2002).

  • 613 No 33771/02 (2007).

  • 614 Pravednaya v Russia No 69529/01 (2004) para 25. See also Nikitin v Russia No 50178/99 (2004) and Lenskaya v Russia No 28730/03 (2009).

  • 615 Unédic v France No 29153 (2008) and Legrand v France No 23228/08 (2011).

  • 616 Nejdet Şahin and Perihan Şahin v Turkey No 13279/05 (2011) para 58 GC.

  • 617 Lupeni Greek Catholic Parish and Others v Romania No 76943/11 (2016) para 116 GC and Nejdet Şahin and Perihan Şahin v Turkey, ibid paras 53–54. See also Sine Tsaggarakis AEE v Greece No 17257/12 (2019) para 58 (mechanism ineffective: violation).

  • 618 No 21722/11 (2013) paras 139, 145. See also Guðmundur Andri Ástráðsson v Iceland No 26374/18 (2020) para 252 (legal certainty considerations will carry ‘increasing weight’ over time regarding challenges to illegal judicial and other appointments).

  • 619 Roşca v Moldova No 6267/02 (2005).

  • 620 Ryabykh v Russia No 52854/99 (2003) and Pravednaya v Russia No 6952/01 (2004).

  • 621 Tregubenko v Ukraine No 61333/00 (2004). Cf Poltorachenko v Ukraine No 77317/01 (2005).

  • 622 Malhous v Czech Republic No 33071/91 (2001) para 55 GC. Cf Barberà, Messegué and Jabardo v Spain Nos 10588/83 et al (1988) para 89 PC, in which the right to a public hearing was breached because much of the evidence against the accused was made a part of the record without being adduced or read in court, and hence not subjected to ‘the watchful eye of the public’.

  • 623 Axen v Germany 8273 (1981) para 77 Com Rep. In the following paragraph references to ‘the public’ include the press.

  • 624 For the cases in which, exceptionally, written proceedings are sufficient under Article 6(1), see section 3.III.b, p 440.

  • 625 Riepan v Austria No 35115/97 (2000) para 29. Cf Hummatov v Azerbaijan No 9852/03 (2007) paras 143–152.

  • 626 See, eg, Campbell and Fell v UK Nos 7819/77 and 7878/77 (1984) (prison disciplinary body).

  • 627 See, eg, Diennet v France No 18160/91 (1995) (medical disciplinary body) and Scarth v UK No 33745/96 (1999) (arbitration).

  • 628 Riepan v Austria No 35115/97 (2000) para 39.

  • 629 ibid para 40 (emphasis added).

  • 630 Hummatov v Azerbaijan No 9852/03 (2007) para 141.

  • 631 Martinie v France No 58675/00 (2006) para 40 GC. The wording ‘strictly necessary’ in the text of Article 6(1) only relates to the ‘interests of justice’, but the Court applies it generally: see Yam v UK No 31295/11 (2020) para 54.

  • 632 See Ch 1, Section 4.V, p 11 ff.

  • 633 See, eg, Nikolova and Vandova v Bulgaria No 20688/04 (2013) paras 94–95. To facilitate the Court’s balancing approach, the respondent state must give the Court the reasons for holding a hearing in private: see Chaushev and Others v Russia No 37037/03 (2016), para 24.

  • 634 No 30373/13 (2020) para 49. In Olujić v Croatia No 22330/05 (2009) para 64, the Court rejected on the facts (alleged improper conduct of judge) a private hearing claim based on the non-listed grounds of the dignity of the applicant and of the judiciary. See also Osinger v Austria No 54645/00 (2005) para 51.

  • 635 For a detailed account of the Court’s jurisprudence applying these grounds, see the Court’s Guide on Article 6 of the European Convention on Human Rights: Right to a Fair Trial (Civil Limb), 2022, pp 61–62 and Guide on Article 6 of the European Convention on Human Rights: Right to a Fair Trial (Criminal Limb), 2022, pp 101–2.

  • 636 Nos 7819/77 and 7878/77 (1984) (private hearing because of risk to security if public allowed in prison or prisoners transported to outside courts).

  • 637 The French text of Article 6(1) is ‘ordre public’.

  • 638 Moiseyev v Russia No 62936/00 (2004) DA.

  • 639 Yam v UK No 31295/11 (2020) para 56.

  • 640 No 20688/04 (2013) para 75.

  • 641 Nos 36337/97 and 355074/97 (2001) para 38. See also Moser v Austria No 12643/02 (2006) (B and P distinguished in a case of child transfer to public care). And see X v UK No 7366/76, 2 Digest 452 (1977) (divorce proceedings: in camera hearing justified, private lives of the parties).

  • 642 Diennet v France No 18160/91 (1995) para 24. See also Imberechts v Belgium No 15561/89 (1991) DA (patient privacy) and Guenoun v France No 13562/88 (1990) DA (medical treatment details).

  • 643 Mraović v Croatia No 30373/13 (2020) para 49.

  • 644 Osinger v Austria No 54645/00 (2005) para 52.

  • 645 No 14040/03 (2010) para 29. See also Belashev v Russia No 28617/03 (2008).

  • 646 No 15924/05 (2011) paras 75–76. See also Osinger v Austria No 54645/00 (2005) para 45. As to anonymous witnesses, see further section 5.V.b, pp 493–494. Pre-trial criminal investigations in private are permissible in the interests of the privacy of those questioned and of justice: Ernst and Others v Belgium No 33400/96 (2003).

  • 647 Nos 36337/97 and 355074/97 (2001) paras 39–40.

  • 648 Jussila v Finland No 43395/09 (2017) para 40 GC.

  • 649 Yakovlev v Russia No 72701/01 (2005) para 19.

  • 650 Demebukov v Bulgaria No 68020/01 (2008) para 44.

  • 651 Yakovlev v Russia No 72701/01 (2005) para 21.

  • 652 Martinie v France No 58675/00 (2006) para 42 GC. Cf Altay v Turkey (No 2) No 11236/09 (2019) para 77.

  • 653 Pönkä v Estonia No 64160/11 (2016) para 37.

  • 654 No 43395/09 (2017) para 43 GC. Distinguished in Hanna Lehtinen v Finland No 32993/02 (2008) para 48 (tax surcharge: clarification of facts needed).

  • 655 No 55391/13 (2018) para 190 GC. See also the Jussila case, para 41.

  • 656 See, eg, Schuler-Zgraggen v Switzerland No 14518/89 (1993) para 58 and Miller v Sweden No 55853/00 (2005) (medical evidence in social security claim). Apart from social security cases, see Martinie v France No 58675/00 (2006) GC (audit of accounts); Hofbauer v Austria No 68087/01 (2004) DA (whether door fire resistant); Eker v Turkey No 24016/05 (2017) para 29 (newspaper correction: ‘prompt’ decision needed); and Ali Riza v Switzerland No 74989/11 (2021) para 119 (about a tribunal’s jurisdiction).

  • 657 Ramos Nunes de Carvalho e Sá v Portugal Nos 55391/13 et al (2018) para 191 GC.

  • 658 No 43395/09 (2017) para 167 GC. For cases in other contexts in which an oral hearing has been required, see Fischer v Austria No 16922/90 (1995) para 44 (revocation of refuse tip licence); Eisenstecken v Austria No 29477 (2000) para 35 (real property contract); Göç v Turkey No 36590/97 (2002) para 47 GC (compensation for detention); Koottummel v Austria No 49616/06 (2009) para 20 (work permit); Selmani and Others v FYRM No 67259/14 (2017) (freedom of expression); Mirovni Inštitut v Slovenia No 30323/13 (2018) para 37 (research project tender).

  • 659 Nos 40575/10 and 677474/10 (2019) para 182. Cf the Ramos Nunes de Carvalho e Sá case, para 210 (facts disputed and judge’s career at stake).

  • 660 ibid para 208.

  • 661 No 25651/94 (2000) para 132.

  • 662 Ie subject to the exceptions listed earlier.

  • 663 Göç v Turkey No 36590/97 (2002) para 47 GC (civil case).

  • 664 Döry v Sweden No 28394/95 (2002).

  • 665 Ekbatani v Sweden No 19563/83 (1988) para 27 PC. See also Hermi v Italy No 18114/02 (2006) GC.

  • 666 Axen v Germany No 82731/78 (1983). An oral hearing was not required for leave to appeal proceedings: Monnell and Morris v UK Nos 9562/81 and 9818/82 (1987) para 68.

  • 667 ibid para 32 PC. See also Kamasinski v Austria No 9783/82 (1989); Botten v Norway No 16296/90 (1996); Belziuk v Poland No 23103/93 (1998); Schlumpf v Switzerland No 29002/06 (2009); and Kashlev v Estonia No 22574/08 (2016). A video-link for the hearing may be sufficient on security grounds: see Marcello Viola v Italy No 45106/04 (2006).

  • 668 No 46182/08 (2016) paras 40–42.

  • 669 No 11274/84 (1991) para 29.

  • 670 No 11826/85 (1991) PC. See also Kremzow v Austria No 12350/86 (1993); Constantinescu v Romania No 28871/95 (2000); and Sigurþór Arnarsson v Iceland No 44671/98 (2003).

  • 671 See the Håkansson and Sturesson v Sweden No 11855/85 (1990) and Pauger v Austria No 16717/90 (1997). And see Guenoun v France No 13562/88 (1990).

  • 672 Håkansson and Sturesson v Sweden No 11855/85 (1990) para 66. See also Schuler-Zgraggen v Switzerland No 14518/89 (1993) para 58 and Pauger v Austria No 16717/90 (1997) para 58.

  • 673 See Hermi v Italy No 18114/02 (2006) GC.

  • 674 ibid. Cf H v Belgium No 8950/80 (1987) PC. Failure to ask for a hearing by a court that lacks full jurisdiction is not a waiver: Göç v Turkey No 36590/97 (2002) GC.

  • 675 Cf Judge Walsh’s dissenting opinion.

  • 676 Werner v Austria No 21835/95 (1997) para 54. For that purpose, see section 3.III.a, p 438.

  • 677 Nikolova andf Vandova v Bulgaria No 20688/04 (2013) para 82.

  • 678 The French text—‘sera rendu publiquement’—suggests the same: Pretto and Others v Italy No 7984/77 (1983) para 25 PC.

  • 679 No 7984/77 (1983) paras 26–27 PC.

  • 680 No 28923/95 (2001).

  • 681 Nos 7819/77 and 7878/77 (1984). But it did find a breach of the ‘pronounced publically’ requirement because no alternative arrangements had been made to publish the award.

  • 682 No 15924/05 (2011) para 84 (drugs offence surveillance). See also Crociani and Others v Italy Nos 8603/79 et al (1980) DA (criminal case; no violation).

  • 683 No 14810/02 (2008) paras 44–45.

  • 684 Cf Sutter v Switzerland No 8209/78 (1984) PC (military court of cassation; no public delivery; judgment available to ‘anyone who could establish an interest’ and published later in official reports: no violation). See also Axen v Germany No 8273/78 (1983) para 31 PC (criminal case).

  • 685 No 21835/93 (1997) paras 56–60.

  • 686 No 7610/15 (2021) para 117. Cf Fazliyski v Bulgaria No 40908/05 (2013) paras 67–69 and Nikolova and Vandova v Bulgaria No 20688/04 (2013) paras 83–84.

  • 687 Nos 36337/97 and 355074/97 (2001) para 46. Contrast Moser v Austria No 12643/02 (2006) paras 102–103 (B and P distinguished).

  • 688 Stögmüller v Austria No 1602/62 (1969) p 40. On the guarantee, see Henzelin and Rordorf, 5 NJ ECL 78 (2014).

  • 689 H v France No 10073/82 (1989) para 58.

  • 690 Stögmüller v Austria No 1602/62 (1969) p 40. Cf Wemhoff v Germany No 2122/64 (1968).

  • 691 On the meaning of ‘criminal charge’, see section 2.I, pp 379ff. The precise date at which this begins to be the case may not be significant if the possible dates are not far apart: see, eg, Zaprianov v Bulgaria No 41171/98 (2004).

  • 692 See, eg, Kristiansen and Tyvik AS v Norway No 25498/08 (2013) para 57. See also Schouten and Meldrum v Netherlands Nos 19005/91 and 19006/91 (1994) para 62; Erkner and Hofauer v Austria No 9616/81 (1987) para 64; and Wiesenger v Austria no 11796/85 (1991).

  • 693 See section 2.I.b, p 383. A reasonable time claim subsists despite acquittal: Lehtinen v Finland No 34147/96 (2005).

  • 694 Neumeister v Austria No 1936/63 (1968) and Nibbio v Italy No 12854/87 (1992).

  • 695 Foti and Others v Italy Nos 7604/76 et al (1982).

  • 696 ibid para 53.

  • 697 Brigandi v Italy No 11460/85 (1991).

  • 698 Süssmann v Germany No 20024/92 (1996) GC. But see Wimmer v Germany No 60534/00 (2005) and Oršuš and Others v Croatia No 15766/03 (2010) paras 108–109 GC (four years for a child education case too long).

  • 699 König v Germany No 6232/73 (1978) PC and Pedersen and Baadsgaard v Denmark No 49017/99 (2004) GC.

  • 700 König v Germany, ibid.

  • 701 Frydlender v France No 30979/96 (2000) GC. What is at stake is sometimes treated as a separate fourth factor: see, eg, Sürmeli v Germany No 75529/01 (2006) GC.

  • 702 See, eg, Casciaroli v Italy No 11973/86 (1992) (Court disagreed with the respondent state’s assessment of the complexity of the case), and Piper v UK No 44547/10 (2015) para 68 (Court disagreed with the Court of Appeal’s assessment of the facts).

  • 703 Boddaert v Belgium No 12919/87 (1992) (six years for complicated murder case reasonable). Cf CP v France No 36009/87 (2000) para 34 (complex fraud case). The accused is also entitled to reasonable time to prepare his defence: see Article 6(3)(b), section 5.III, p 477.

  • 704 No 12539/86 (1994) para 62.

  • 705 Eckle v Germany No 8130/78 (1982).

  • 706 Neumeister v Austria No 1936/63 (1968).

  • 707 Nicolae Virgiliu Tănase v Romania No 41720/13 (2019) para 210 GC.

  • 708 Neumeister v Austria No 1936/63 (1968). The respondent state will not be responsible for another state’s delays in supplying evidence: ibid.

  • 709 ibid.

  • 710 Eg violations in De Clerck v Belgium No 34316/92 (2007) para 57 (money laundering and fraud; nearly 17 years, still pending) and Cipolleta v Italy No 38259/09 (2018) (complex liquidation proceedings, 25 years).

  • 711 See, eg, König v Germany No 6232/73 (1978) PC (changing lawyers, making appeals, calling new evidence).

  • 712 Eckle v Germany No 8130/78 (1982) para 82.

  • 713 Corigliano v Italy No 8304/78 (1982). Likewise delay because of accused’s ill-health: Krakolinig v Austria No 33992/07 (2012) para 27 DA. The accused has no right to terminate criminal proceedings because of ill-health: Krakolinig v Austria, ibid.

  • 714 Orchin v UK No 8435/78 (1982) Com Rep; CM Res DH (83) 14.

  • 715 Vayiç v Turkey No 18078/02 (2006) citing Ventura v Italy No 7438/76 (1980) DA.

  • 716 See Buchholz v Germany No 7759/77 (1981) para 50 and Foley v UK No 39197/98 (2002) para 40.

  • 717 Unión Alimentaria Sanders SA v Spain No 11681/85 (1989) para 35. Cf Sürmeli v Germany No 75529/01 (2006) GC.

  • 718 Unión Alimentaria Sanders SA v Spain, ibid. Cf Deumeland v Germany No 9384/81 (1986) para 80 PC. For cases of litigant delay for which the state was not responsible, see Monnet v France No 13675/88 (1993); Ciricosta and Viola v Italy No 19753/92 (1995); and Patrianakos v Greece No 19449/02 (2004).

  • 719 H v France No 10073//82 (1989). But in a criminal case there is a duty to provide effective legal aid under Article 6(3)(c).

  • 720 Bock v Germany No 11118/84 (1989) para 41.

  • 721 But a private law reporter’s delay is not attributable to the state: Foley v UK No 39197/98 (2002). Quaere whether the UK is responsible for delays by its health authorities: see Somjee v UK No 42116/98 (2002).

  • 722 Eckle v Germany No 8130/78 (1982).

  • 723 Orchin v UK No 8435/78 (1982) Com Rep; CM Res DH (83) 14.

  • 724 Georgiadis v Cyprus No 50516/99 (2002). See also Foti v Italy Nos 7604/76 et al (1982) (transferring cases between courts).

  • 725 Eckle v Germany No 8130/78 (1982) (1982).

  • 726 ibid. The reasonable time guarantee continues to apply until the time limit for an appeal is exhausted: Ferraro v Italy No 13440/87 (1991).

  • 727 Hentrich v France No 13616/88 (1994). See also Rezette v Luxembourg No 73983/01 (2004).

  • 728 Foti and Others v Italy Nos 7604/76 et al (1982).

  • 729 Włoch v Poland No 27785/95 (2000) paras 149–150. See also Khlebik v Ukraine No 2945/16 (2017) (account taken of difficulty of obtaining evidence from territory not under government control).

  • 730 Pafitis and Others v Greece No 20323/92 (1998) para 96 and Giannangeli v Italy No 41094/98 (2001).

  • 731 Guincho v Portugal No 8990/80 (1984).

  • 732 König v Germany No 6232/73 (1978) PC.

  • 733 Rawa v Poland No 38804/97 (2003).

  • 734 H v UK No 9580/01 (1987) PC.

  • 735 König v Germany No 6232/73 (1978) PC. See also Iribarren Pinillos v Spain No 36777/03 (2009).

  • 736 Wiesinger v Austria No 11796/85 (1991).

  • 737 Pafitis and Others v Greece No 20323/92 (1998) para 95.

  • 738 Buchholz v Germany No 7759/77 (1981). Cf Eastaway v UK No 74976/01 (2004) (company director) and Svetlana Orlova v Russia No 4487/04 (2009) (pregnant employee).

  • 739 Sylvester v Austria (No 2) No 54640/00 (2005). See also Berlin v Luxembourg No 44978 (2003) (family life).

  • 740 Hokkanen v Finland No 198123/92 (1994). Cf H v UK No 9580/81 (1987) PC (parental access).

  • 741 Oršuš and Others v Croatia No 15766/03 (2010) GC.

  • 742 Bock v Germany No 11118/84 (1989); RPD v Poland No 77681/01 (2004); Gheorghe v Romania No 19215/04 (2007); and De Clerck v Belgium No 34316/02 (2007). ‘Exceptional diligence’ is required in claims of compensation for AIDS: X v France No 18020/91 (1992) and child access cases: Paulsen-Medalen and Svensson v Sweden No 18020/91 (1998) paras 39, 42.

  • 743 Pieniążek v Poland No 62179/00 (2004).

  • 744 Poiss v Austria No 9816/82 (1987) and Hentrich v France No 13616/88 (1994).

  • 745 De Clerck v Belgium No 34316/02 (2007).

  • 746 Silva Pontes v Portugal No 14940/89 (1994). But see Sürmeli v Germany No 75529/01 (2006) GC.

  • 747 Schouten and Meldrum v Netherlands Nos 19005/91 and 19006/91 (1994).

  • 748 Henworth v UK No 515/02 (2004); and Portington v Greece No 28523/95 (1998).

  • 749 Liblik and Others v Estonia Nos 173/15 et al (2019) para 103.

  • 750 Baggetta v Italy No 10256/83 (1987). Special diligence is required in a retrial: Henworth v UK No 28523/95 (2004).

  • 751 Abdoella v Netherlands No 12728/87 (1992); and Kalashnikov v Russia No 47095/99 (2002).

  • 752 Frydlender v France No 30979/96 (2000) GC.

  • 753 See B v Austria No 27783/95 (1990); (two years and nine months to draft appeal court judgment when appellant in detention).

  • 754 No 7984/77 (1983) para 37 PC. Cf Biryukov v Russia No 63972/00 (2004) DA.

  • 755 No 13645/88 (1993). Cf Kudła v Poland No 30210/96 (2000) GC.

  • 756 See, eg, Guincho v Portugal No 8990/80 (1984) para 30; Deumeland v Germany No 9384/81 (1986) para 90 PC; and Lechner and Hess v Austria No 9316/81 (1987) para 39.

  • 757 Vlad and Others v Romania Nos 40756/06 et al (2013) para 133.

  • 758 No 19874/92 (1996) para 42. For other such cases, see, eg, Comingersoll SA v Portugal No 35382/97 (2000) GC; Gümüşten v Turkey No 47116/99 (2004); Obasa v UK No 50034/99 (2003); Jordan v UK (No 2) No 49771/99 (2002); Satakunnan Markkinapörssi Oy and Satamedia Oy v Finland No 931/13 (2017) para 211 GC.

  • 759 Airey v Ireland No 6289/73 (1979).

  • 760 Süssmann v Germany No 20024/92 (1996) para 55 GC. See also Serrano Contreras v Spain No 2236/19 (2012) para 57.

  • 761 Klein v Germany No 33379/96 (2000) para 43.

  • 762 No 8737/79 (1983). See also Žiačik v Slovakia No 4337/98 (2003).

  • 763 A system of priorities may be permissible as a short-term measure: Süssmann v Germany No 20024/92 (1996) para 60 GC (priority for German reunification cases permissible).

  • 764 No 17820/91 (1997) para 69. Cf Klein v Germany No 33379/96 (2000).

  • 765 No 7759/77 (1981).

  • 766 No 1936/63 (1968).

  • 767 No 6232/73 (1978) para 100 PC.

  • 768 See, eg, Gümüşten v Turkey No 47116/99 (2004) (17 years); Hannak v Austria No 70883/01 (2004) (15 years). Both cases involved appeals. See also the cases in n 000.

  • 769 See, eg, Mazzotti v Italy No 44354/98 (2000) (24 years, for one level of proceedings); Szarapo v Poland No 40835/98 (2002) (19 years, with appeals); and Sürmeli v Germany No 75529/01 (2006) GC (16 years, with appeals and still pending).

  • 770 On the role of the Convention in tackling the problem, see Kuijer, 13 HRLR 777 (2013).

  • 771 Whereas breaches of the ‘reasonable time’ guarantee were for a long time a problem mainly in cases coming from civil law jurisdictions, there has been a growing number of such breaches from common law jurisdictions: for UK cases, see, eg, civil cases: Foley v UK No 39197/98 (2003) (14 years); and criminal cases: Crowther v UK No 53741/00 (2005) (eight years), both at more than one level.

  • 772 No 34884/97 para 22 GC. See also Michelioudakis v Greece No 54447/10 (2012) and Glykantzi v Greece No 40150/19 (2012) (pilot judgments on excessive delay in criminal and civil cases respectively). In Xynos v Greece No 30226/09 (2014) para 44 a new compensatory remedy in response to the above pilot judgments was recognized as effective and accessible. And see Rumpf v Germany No 46344/06 (2010) (pilot judgment on excessive delay in civil cases; reform then pending) and Lukenda v Slovenia No 23032/02 (2005) (remedial law effective: Korenjak v Slovenia No 463/03 (2007) DA).

  • 773 For criticism of this consequence, see Judge Ferrari Bravo’s dissenting opinion in Angelo Giuseppe Guerrera v Italy No 44413/98 (2002), pointing out that 133 Italian ‘reasonable time’ cases had been decided on this basis on one day.

  • 774 No 36813/97 (2006) GC.

  • 775 See, eg, Oleksandr Volkov v Ukraine No 21722/11 (2013) para 107 and Cooper v UK No 48843/99 (2003) GC.

  • 776 See Oberschlick v Austria (No 1) No 11662/85 (1991) para 51 PC; Pfeifer and Plankl v Austria No 10802/84 (1992) paras 37–39; Bulut v Austria No 17358/90 (1996) para 34; and McGonnell v UK No 28488/95 (2000) paras 44–45. For waiver requirements, see Ch 9, I, p 378.

  • 777 No 26374/18 (2020) para 219 GC. See also Cyprus v Turkey No 25781/94 (1999) para 233 GC and Belilos v Switzerland No 10328/83 (2005) para 64 PC.

  • 778 Ed: A ‘tribunal’ requires a set of rules of procedure by which it operates: H v Belgium No 8950/80 (1987) PC.

  • 779 Benthem v Netherlands No 8848/80 (1985) PC. Cf Mutu and Pechstein v Netherlands Nos 40575/10 and 67474/10 (2018) para 139 GC.

  • 780 Mutu and Pechstein v Netherlands, ibid.

  • 781 Cooper v UK No 48843/99 (2003) GC. See also British-American Tobacco v Netherlands No 19589/92 (1995); Beaumartin v France No 15287/89 (1994); and Sovtransavto Holding v Ukraine No 48553/99 (2002). For the related Article 6 requirement of the finality of court judgments, see the Brumărescu case, section 3.II.k, p 436.

  • 782 Van de Hurk v Netherlands No 16034/90 (1994) para 45.

  • 783 Campbell and Fell v UK Nos 7819/77 and 7878/77 (1984); H v Belgium No 8950/80 (1987); and Demicoli v Malta No 13057/87 (1991). However, it may raise issues of objective independence and impartiality on the facts.

  • 784 Vera Fernández-Huidobro v Spain No 74181/01 (2010).

  • 785 See, eg, Langborger v Sweden No 11179/84 (1989) PC.

  • 786 No 66847/12 (2017) para 105.

  • 787 Ettl and Others v Austria No 9273/81 (1987) and Stojakovic v Austria No 30003/02 (2006).

  • 788 Engel and Others v Netherlands Nos 5100/71 et al (1976) PC. Cf Le Compte, Van Leuven and De Meyere v Belgium Nos 6878/75 and 7238/75 (1981) PC (medical disciplinary body).

  • 789 Cooper v UK No 48843/99 (2003) GC.

  • 790 Ringeisen v Austria No 2614/65 (1971) para 95. It also means independence of Parliament: Crociani v Italy No 8603/79 (1980).

  • 791 Nos 40575/10 and 67474/10 (2018) para 140 GC. Cf Ramos Nunes de Carvalho e Sá v Portugal Nos 55391/13 et al (2018) para 144 GC.

  • 792 Benthem v Netherlands No 8848/80 (1985) PC. See also Gerovska Popcevska v FYRM No 48783/07 (2016) para 55 (Minister of Justice member of judicial disciplinary body: violation).

  • 793 Beaumartin v France No 15287/89 (1994) (Ministry of Foreign Affairs advice). Cf Chevrol v France No 49636/99 (2003).

  • 794 Stafford v UK No 46295/99 (2002) para 78 GC.

  • 795 Maktouf and Damjanović v Bosnia and Herzegovina Nos 2312/08 and 34179/08 (2013) para 49 GC. See also Campbell and Fell v UK Nos 7819/77 and 7878/77 (1984); Belilos v Switzerland No 10328/83 (1988); Asadov and Others v Azerbaijan No 138/03 (2006) DA (appointment by executive); Filippini v San Marino No 10526/02 (2003) DA; and Haarde v Iceland No 66847/12 (2017) para 105 (appointment by Parliament).

  • 796 Zand v Austria No 7360/76 (1978) Com Rep; CM Res DH (79) 6 (no violation). As to the appointment of judges for their political views, see Crociani v Italy No 8603/79 (1980) (question seen in terms of impartiality).

  • 797 Nos 7819/77 and 7878/77 (1984). Cf Sramek v Austria No 8790/79 (1984) PC (three years) and Le Compte, Van Leuven and De Meyere v Belgium Nos 6878/75 and 7238/75 (1981) PC (six years). Ad hoc appointment of a military officer as a court-martial member for just one case was sufficient: Cooper v UK No 48843/99 (2003) GC. Cf Dupuis v Belgium No 12717/87 (1988). See also Mihailov v Bulgaria No 52367/99 (2005) (no tenure).

  • 798 Zand v Austria No 7360/76 (1978) Com Rep; CM Res DH (79) 6.

  • 799 Incal v Turkey No 22678/93 (1998) para 68 GC. But see Yavuz v Turkey No 29870/96 (2000) DA.

  • 800 Engel and Others v Netherlands Nos 5100/71 et al (1976) PC. See also Sramek v Austria No 8790/97 (1984) para 38 PC; Brudnicka v Poland No 54723/00; Ali Riza and Others v Turkey Nos 30226/10 and 5506/16 (2020) para 220.

  • 801 See Crociani v Italy No 8603/79 (1980).

  • 802 Engel and Others v Netherlands Nos 5100/71 et al (1976) PC.

  • 803 Nos 7819/77 and 7878/77 (1984) para 80 PC. In practice, the Home Secretary would require the removal of a member ‘only in the most exceptional circumstances’: ibid. See also Clarke v UK No 23695/02 (2005) DA (circuit judges). Cf Fruni v Slovakia No 8014/07 (2011). But see Henryk and Ryszard Urban v Poland No 23614/08 (2010). See also Cooper v UK No 48843/99 (2003) GC (sufficient safeguards against outside pressure on military officer court-martial members).

  • 804 The availability of judicial review was a relevant factor in Eccles, McPhillips and McShane v Ireland No 12839/87 (1988).

  • 805 No 23614/08 (2010) para 53. The post of assessor, or junior judge, has since been abolished.

  • 806 See Campbell and Fell v UK Nos 7819/77 and 7878/77. Cf Schiesser v Switzerland No 7710/76 (1979) (an Article 5(3) case).

  • 807 Nos 3321/67 et al (the Greek case) at 148 (1969) Com Rep; CM Res DH (70) 1.

  • 808 Sutter v Switzerland No 8209/78 (1979).

  • 809 Nos 3321/67 et al (the Greek case) at 148 (1969) Com Rep; CM Res (70) 1.

  • 810 No 10328/83 (1988) paras 66–67. See also Sramek v Austria no 8790/79 (1984) paras 41–42 PC (land tribunal not independent: one of its key members a civil servant who was a subordinate of another civil servant a party to the proceedings). And see Grosam v Czech Rep No 19750/13 (2022).

  • 811 No 21722/11 (2013) paras 109–117. See also Denisov v Ukraine No 76639/11 (2018).

  • 812 No 22107/93 (1997) para 78. Cf Hirschhorn v Romania No 29294/02 (2007) and Ibrahim Gürkan v Turkey No 10987/10 (2012). See also Miroshnik v Ukraine No 75804/01 (2008) (Ministry of Defence housing for military court judges who were servicemen: breach) and Mikhno v Ukraine No 32514/12 (2016) (judges in military court independent).

  • 813 As revised by the Armed Forces Act 1996, the UK court-martial system for the army and the RAF was held to comply with Article 6: Cooper v UK No 48843/99 (2003) GC. The naval system was amended by the Armed Forces Act 2006 to comply with Grieves v UK No 57067/00 (2003) GC. A similar lack of ‘structural independence’ was found in internal prison disciplinary proceedings in Whitfield and others v UK Nos 46387/99 et al (2005).

  • 814 No 42095/98 (2000). Cf Moiseyev v Russia No 62936/00 (2008).

  • 815 No 22678/93 (1998) GC.

  • 816 ibid para 68. The Court took into account that the judge was subject to military discipline and appointed only for four years, and that the army took orders from the executive—considerations that outweighed certain guarantees of his independence and impartiality.

  • 817 No 46221/99 (2005) GC. Cf Mustafa v Bulgaria No 1230/17 (2019) para 245. But see Ceylan v Turkey No 68953/01 (2005) DA, in which a military judge’s participation in interlocutory proceedings before his replacement by a civilian judge on the merits was not a breach.

  • 818 The fact that it was a death penalty case may have influenced the Court majority.

  • 819 No 40426/98 (2006) paras 44–45. For reasons for the Court’s concern at the trial of civilians by military courts, see Ergin v Turkey (No 6) No 47533/99 (2006).

  • 820 Ramos Nunes de Carvalho e Sá v Portugal Nos 55391 et al (2018) para 145 GC.

  • 821 ibid para 146.

  • 822 Kyprianou v Cyprus No 73797/01 (2005) para 119 GC. The presumption extends to jury members: Sander v UK No 34129/96 (2000).

  • 823 Kyprianou was one such case: see section 3.V.c, p 459. For other examples, see Werner v Poland No 26769/95 (2001) para 41; Driza v Albania No 33771/02 (2007) para 78; Oleksandr Volkov v Ukraine No 21722/11 (2013) para 116.

  • 824 Sramek v Austria No 8790/79 (1984) para 42 PC.

  • 825 Fey v Austria No 14396/88 (1993) para 30.

  • 826 Hauschildt v Denmark No 10486/83 (1989) para 48 PC. See also Vardanyan and Nanushyan v Armenia No 8001/07 (2016) para 82.

  • 827 Hauschildt v Denmark, ibid.

  • 828 Vernes v France No 30183/06 (2011).

  • 829 See, eg, Karelin v Russia No 926/08 (2016) para 52 (public prosecutor absent: violation). But see Weh and Weh v Austria No 38544/97 (2002) DA (no violation) and Thorgeir Thorgeirson v Iceland No 13778/88 (1992) paras 48–54 (prosecution absent from just some sessions: no violation).

  • 830 See Barberà, Messegué and Jabardo v Spain Nos 10588/83 et al (1988) paras 53–59 PC.

  • 831 Le Compte, Van Leuven and De Meyere v Belgium Nos 6878/75 and 7238/75 (1981) para 58 PC (medical disciplinary body).

  • 832 No 28488/95 (2000) para 55. Cf Procola v Luxembourg No 14570/89 (1995) (Conseil d’État members who had advised on legislation later applied it as judges: not impartial), distinguished in Kleyn v Netherlands Nos 39343/98 et al (2003) GC. See also Sacilor-Lormines v France No 65411/01 (2006). A member of parliament is not per se disqualified from being a judge: Pabla Ky v Finland No 47221/99 (2004).

  • 833 McGonnell v UK No 28488/95 (2000) para 55. In Previti v Italy No 45291/06 (2009) DA, participation in a case by members of the national legal service who had earlier criticized the law to be applied was not a breach.

  • 834 Kleyn and others v Netherlands Nos 39343/98 et al (2003) GC. Cf Oleksandr Volkov v Ukraine No 21722/11 (2013).

  • 835 No 48553/99 (2002). Cf Ivanovski v FYRM No 29908/11 (2016) (prime minister denounced applicant during lustration proceedings: violation). Contrast Mosteanu and Others v Romania No 33176/96 (2002) (president’s remarks opposing implementation of judgments: no violation) and Čivinskaitė v Lithuania No 21218/12 (2020) paras 117, 135 (president’s comment on penalty: no breach).

  • 836 No 7577/02 (2007).

  • 837 Fey v Austria No 14396/88 (1993) para 30.

  • 838 No 8692/79 (1982) para 30. A ‘legitimate doubt’ may also exist where the judge takes over the role of the prosecution during the trial: see Thorgeir Thorgeirson v Iceland No 13778/88 (1992). See also Jón Kristinsson v Iceland No 12170/86 (1990) (F Sett before Court), in which the chief of police was also a criminal court judge. The Commission found a breach, the limited number of qualified persons in a small population being no excuse. See also D’Haese, Le Compte, Van Leuven and De Meyere v Belgium No 8930/80 (1983) and Mellors v UK No 57836/00 (2003) DA.

  • 839 No 9186/80 (1984) (violation). Cf Pfeifer and Plankl v Austria No 10802/84 (1992) (breach of Article 6(1)—and national law—for an investigating judge to be the trial judge). See also Adamkiewicz v Poland No 54729/00 (2010). Contrast Fey v Austria No 14396/88 (1993) (marginal roll at pre-trial stage at the pre-trial stage:no breach). And see Grande Stevens and others v Italy Nos 18640/10 et al (2014) paras 136–137.

  • 840 No 12981/87 (1992) para 32. Cf Padovani v Italy No 13396/87 (1993); Nortier v Netherlands No 13924/88 (1993); Castillo Algar v Spain No 28194/95 (1998); and Jasiński v Poland No 30865/96 (2005).

  • 841 There was a breach in the ‘special circumstances’ of Hauschildt v Denmark No 10486/83 (1989) para 50 PC. See also Cianetti v Italy No 55634/00 (2004) and Cardona Serrat v Spain No 38715/06 (2010) (breaches).

  • 842 No 6899/12 (2015).

  • 843 No 2614/65 (1971) para 97. See also Thomann v Switzerland No 17602/91 (1996).

  • 844 Oberschlick v Austria (No 1) No 11662/85 (1991). See also Indra v Slovakia No 46845/99 (2005) and Chesne v France No 29808/06 (2010).

  • 845 Mancel and Branquart v France No 22349/06 (2010). Cf Peruš v Slovenia No 35016/05 (2012). The number and proportion of judges who necessarily sit at both stages and their role is relevant: Fazli Aslaner v Turkey No 36073/04 (2014) paras 36–42.

  • 846 De Haan v Netherlands No 22839/93 (1997). See also San Leonard Band Club v Malta No 77562/01 (2004). And see Kingsley v UK No 35605/97 (2002) GC.

  • 847 Gillow v UK No 9063/80 (1986) and Khodorkovskiy and Lebedev v Russia Nos 11082/06 and 13772/05 (2013). See also Lindon et al v France Nos 21279/02 and 36448/02 (2007) GC.

  • 848 See Fatullayev v Azerbaijan No 40984/07 (2010); Golubović v Croatia No 43947/10 (2012); Lindon-Otchakovsky-Laurens and July v France Nos 21279/02 and 36448/02 (2007) GC; and Boyan Gospodinov v Bulgaria No 28417/07 (2018).

  • 849 No 19874/92 (1996). See also Indra v Slovakia No 46845/99 (2005) and Warsicka v Poland No 2065/03 (2007). There may also be a breach where a judge has been an opposing party to the applicant in an earlier case: Chmelíř v Czech Republic No 64934/01 (2005).

  • 850 No 19874/92 (1996) paras 127, 130 GC. The Cypriot Supreme Court did not remedy the breach on appeal. Cf Slomka v Poland No 68924/12 (2018) para 49.

  • 851 X v UK No 4991/71 (1973) DA. Cf X v UK No 5574/72 (1975) DA (accused had ‘not a ghost of a chance’).

  • 852 Ranson v UK No 14180/03 (2003) DA.

  • 853 No 43373/98 (2001) paras 40, 42 (criminal case). The was decided as a ‘proceedings as whole’ basis, with no mention in partiality.

  • 854 No 295569/95 (1999) paras 67–68. See also Lavents v Latvia No 58442/00 (2002) and Olujić v Croatia No 22330/05 (2009).

  • 855 Nos 36661/07 and 38433/07 (2008) para 165.

  • 856 No 29369/10 (2013) paras 88–91 GC. Contrast Rustavi 2 Broadcasting Co Ltc and Others v Georgia No 16812/17 (2019) (claim that one of nine judges biased, but evidence not so strong as in Morice and, unlike Morice, requests for recusal had been possible).

  • 857 No 33958/96 (2000) para 47. See also Puolitaival and Pirttiaho v Finland No 54857/00 (2004); Chmelíř v Czech Republic No 64935/01 (2005); and Švarc and Kavnik v Slovenia No 75617/01 (2007).

  • 858 No 37272/97 (2001) DA.

  • 859 Pétur Thór Sigurđsson v Iceland No 39731/98 (2003). The amount of the financial interest is relevant: Sigriđur ElίSigfúsdóttir v Iceland No 41382/17 (2020) para 56–57 (‘substantial’: violation).

  • 860 D v Ireland No 11489/85 (1986) (judge owned shares in defendant company).

  • 861 No 13057/87 (1991). See also Mitrov v FYRM No 45959/09 (2016) (a judge in a criminal traffic accident case had been clerk to another judge whose daughter was the accident victim: violation).

  • 862 No 11179/84 (1989) PC. Cf Thaler v Austria No 58141/00 (2005). Contrast AB Kurt Kellermann v Sweden No 41579/98 (2004) and Timperi v Finland No 60963/00 (2004) DA (no breaches).

  • 863 Nos 6878/75 and 7238/75 (1981) para 58 PC.

  • 864 Report of the Commission in Le Compte, Van Leuven and De Meyers v Belgium No 8930/80 (1983) para 78.

  • 865 In contrast, see Gautrin and Others v France Nos 21257/93 et al (1998) and Harabin v Slovakia No 58688/11 (2012). See also Thaler v Austria No 58141/00 (2005).

  • 866 No 17056/06 (2009) GC. For other violation because of judge’s close family ties, see Ramljak v Croatia No 5856/13 (2017) para 29 and Nicholas v Cyprus No 63246/10 (2018) para 62. Contrast Pastörs v Germany No 55225/14 (2019) para 68 (husband and wife judges sat at different levels of accused’s criminal trial and appeal: no violation) and Steck-Risch and Others v Liechtenstein No 63151/00 (2005) para 47 (judges at different levels in the applicants civil case in the same law office: no violation).

  • 867 Salaman v UK No 43505/98 (2000) DA. For other cases in which personal links were not a breach, see Steiner v Austria No 16445/90 (1993) DA; Academy Trading Ltd and Others v Greece No 30342/96 (2000); Lawrence v UK No 74660/01 (2002) DA; and Parlov-Tkalčić v Croatia No 24810/06 (2009).

  • 868 Pescador Valero v Spain No 62435/00 (2003). See also Timperi v Finland No 60963/00 (2004) DA.

  • 869 Tocono et al v Moldova No 32263/03 (2007). See also Podoreški v Croatia No 13587/03 (2007) (F Sett) (judge close relative of plaintiffs).

  • 870 X v Austria No 556/59 (1960).

  • 871 No 33949/02 (2006).

  • 872 So does the independence requirement, but impartiality will usually be most relevant: see Pullar v UK No 22399/93 (1996). There is no right to jury trial as such in the Convention: Moiseyev v Russia No 62936/00 (2004) DA.

  • 873 No 1176/10 (2015) paras 57–58.

  • 874 No 43471/98 (2002) DA. Cf Pullar v UK No 22399/93 (1996), in which a juror was employed by a key prosecution witness’s firm but had no personal connection with the case: no ‘legitimate doubt’, taking into account the safeguards in place: inter alia that the jurors swore an oath—reinforced by the judge’s directions—requiring impartiality. And see Procedo Capital Corporation v Norway No 3338/05 (2009).

  • 875 No 14191/88 (1993). See also Fahri v France No 23144/93 (2000) (ministère public private talk with jury: breach) and Hardiman v UK No 25935/94 (1996) DA (juryman invited barrister for a drink: no breach).

  • 876 Nos 26766/05 and 22228/06 (2011). See Ashworth, Crim LR 295 (2012) and Hunderford-Welch, Crim LR 320 (2012). Contrast Peter Armstrong v UK No 65282/09 (2014) (two police officer jury members did not know any police officers giving evidence and no defence objection: no violation).

  • 877 No 8400/07 (2010). See also Bodet v Belgium No 78480/13 (2017) (post-trial statement to press by jury member did not indicate jury partiality) and Ekeberg and Others v Norway Nos 11106/04 et al (2007) (witness statement by jury member to police: no violation).

  • 878 No 16839/90 (1996). On jury secrecy and Article 10, see Seckerson and Times Newspapers Ltd v UK Nos 33844/10 and 33510/10 (2012) DA.

  • 879 No 22299/93 (1997) paras 47–48. See also Elias v UK No 48905/99 (2001) DA (racial comment by prosecuting counsel: no violation on the facts).

  • 880 No 34129/96 (2000).

  • 881 There was no breach of the subjective impartiality requirement, the judge not being in a position to inquire into the precise nature and context of the comments made in the jury room.

  • 882 There was some uncertainty in Gregory whether defence counsel had called for the jury to be dismissed.

  • 883 X and Y v Ireland No 8299/78 (1980) and Callaghan v UK No 14739/89 (1989). However, states are free to use them: Taxquet v Belgium No 926/05 (2010) para 84 GC. Resort to trial by judge alone for fear of jury tampering is acceptable: Twomey and Cameron and Guthrie v UK Nos 67318/09 and 22226/12 (2013) DA.

  • 884 In Taxquet v Belgium, ibid paras 45–47, the Court noted that ten states parties, including Austria, Belgium, Russia, and the UK, had ‘traditional’ jury systems in serious criminal cases, with the presiding judge not participating in the deliberations of a lay jury. Fourteen states, including the Netherlands and Turkey, did not use juries at all; the remainder, including France and Germany, used a ‘collaborative’ system in which the judge and jury collectively decided the case.

  • 885 No 57435/09 (2020) paras 57–59 (police officer prosecuted for killing three children in road accident; extensive media coverage: no violation).

  • 886 Čivinskaitė v Lithuania No 21218/12 (2020) paras 95, 138 (prosecutor demoted for inadequate investigation of sexual abuse case: extensive media coverage: civil rights case, no violation).

  • 887 Ed: on such action by the ‘authorities’ in criminal cases and the presumption of innocence, see section 4, p 474.

  • 888 No 15499/10 (2012) paras 125, 128 DA (judge’s directions sufficient). Cf Noyes v UK No 4491/002 (2008) DA.

  • 889 See Čivinskaitė v Lithuania No 21218/12 (2020) (civil rights case) and Craxi v Italy No 34896/97 (2002); GCP v Romania No 20899/03 (2011) paras 56–61; and Priebke v Italy No 48799/99 (2001) DA (criminal cases). See also Ninn-Hansen v Denmark No 28972/95 (1999) DA (professional and lay judges: no evidence of prejudice).

  • 890 DMD Group AS v Slovakia No 19334/03 (2010) para 58 DA.

  • 891 Sokurenko and Strygun v Ukraine Nos 29458/04 and 29465/04 (2006) para 26.

  • 892 ibid. Cf Crociani v Italy Nos 8603/79 et al (1980) DA and Campbell and Fell v UK Nos 7819/77 and 7878/77 (1984).

  • 893 Pandjikidzé and Others v Georgia No 30323/02 (2009) (no law governing the appointment and role of law judges). Cf Oleksandr Volkov v Ukraine No 21722/11 (2013) and Gurov v Moldova No 36455/02 (2006).

  • 894 Nos 32492/96 et al (2000). The Strasbourg Court will not question the national courts’ interpretation of national law on these matters in the absence of a ‘flagrant violation’: Jorgic v Germany No 74613/01 (2007).

  • 895 Nos 29458/04 and 29465/04 (2006).

  • 896 Lavents v Latvia No 58442/00 (2002) para 115. See also Buscarini v San Marino No 31657/96 (2000) DA.

  • 897 Ali Riza v Turkey Nos 30226/10 and 5506/16 (2020) para 195 (Turkish Football Federation arbitration committee). See also X and Y v Ireland No 8299/78 (1980) DA (special criminal court for terrorist offences); Sramek v Austria No 8790/79 (1984) para 36 PC (real property transactions authority); Fruni v Slovakia No 8014/07 (2011) para 142 (organized crime offences).

  • 898 Cyprus v Turkey No 25781/94 (2014) para 233 GC. On the meaning of judicial function, see section 3.V.a, p 452.

  • 899 ibid (2001) GC. For criticism, see Loucaides, 15 Leiden JIL 225, 235 (2002).

  • 900 No 26374/18 (2020) paras 244–252 GC.

  • 901 ibid para 272. The Grand Chamber stated that the absence of a ‘manifest breach’ does not necessarily rule out the possibility of a violation of the ‘right to a tribunal established by law’: there may ‘be circumstances where a judicial appointment procedure that is seemingly in compliance with the relevant domestic rules nevertheless produces results that are incompatible with the object and purpose of that Convention right’: ibid 245.

  • 902 ibid para 265.

  • 903 ibid para 286.

  • 904 In 2022, there were over 90 cases pending at Strasbourg on various aspects of the reforms.

  • 905 No 4907/18 (2021).

  • 906 As to the third step, as in the Reczkowicz case discussed later, there was no national court review of the legal consequences of the breach to consider.

  • 907 No 43447/19 (2021). See also Dolińska-Ficek and Ozimiek v Poland Nos 49868/19 and 57511/19 (2021) and Advance Pharma sp. z o.o v. Poland No 1469/20 (2022) (appointment of judges to other Supreme Court chambers: violations). In the Dolińska-Ficek case, the ‘fundamental irregularity’ in the appointment of the National Council’s members was compounded by the Polish President, ‘in blatant disregard of the rule of law’, making the appointments recommended by the Council notwithstanding a ruling by the Supreme Administrative Court suspending them.

  • 908 The Court also took into account European Court of Justice rulings along similar lines: ibid para 249.

  • 909 See the concurring opinion of Judge Wojtyczek, paras 2.2.1 and 2.2.2. Judge Wojtyczek referred to ‘uncertainty for thousands of persons whose cases have been decided with the participation of judges’ nominated by the National Council.

  • 910 A right of appeal in criminal cases is provided by Article 2, Seventh Protocol. The interpretation of the Article 6 guarantee concerning appeal courts is not to be influenced by the content (particularly the limitations) of the guarantee in the Seventh Protocol: Ekbatani v Sweden No 10563/83 (1988) PC.

  • 911 Delcourt v Belgium No 2689/65 (1970).

  • 912 Bricmont v Belgium No 10857/84 (1989).

  • 913 Riepan v Austria No 35115/97 (2000) para 39.

  • 914 Le Compte, Van Leuven and De Meyer v Belgium Nos 6878/75 and 7238/75 (1981) para 51 PC.

  • 915 No 9186/80 (1984) para 32. Cf Riepan v Austria No 35115/97 (2000).

  • 916 No 8269/78 (1982).

  • 917 No 13071/87 (1992). Cf Schuler-Zgraggen v Switzerland No 14518/89 (1993).

  • 918 No 22107/93 (1997) para 79. Cf the De Cubber case, in which the trial court was not impartial because the judge had taken part in an earlier stage of the case. See also Holm v Sweden No 14191/88 (1993) para 33 (defect stemming from jury system could not be cured by appeal court because it was bound by the jury’s verdict) and Riepan v Austria No 35115/97 (2000) PC (absence of public hearing could not be rectified).

  • 919 For the meaning of ‘charged with a criminal offence’, see section 2.I, pp 379 ff.

  • 920 See Allen, Legal Duties, 1931, p 253.

  • 921 Barberà and Others v Spain No 10590/83 (1988) para 77 PC. See also Austria v Italy No 788/60 Com Rep; CM Res DH (63) 3.

  • 922 Tsalkitzis v Greece No 72624/10 (2017) para 60 (in dubio pro reo principle a ‘specific expression of the presumption of innocence’).

  • 923 ‘Criminal charge’ has the same autonomous meaning as elsewhere in Article 6.

  • 924 Krause v Switzerland No 7986/77 (1978) DA PC.

  • 925 See Adolf v Austria No 8269/78 (1982) paras 30, 34.

  • 926 No 29864/03 (2013) para 139: see later in this section, p 475. See also Mustafa (Abu Hamza) v UK No 31411/07 (2011) DA (pre-charge ministerial statement).

  • 927 Ismoilov and Others v Russia No 2947/06 (2008) paras 167–168.

  • 928 Tirado Ortiz and Lozano Martin v Spain No 43486/98 (1999) DA.

  • 929 X v Germany No 986/61, 5 YB 192 (1962).

  • 930 Funke v France No 10828/84 (1991) para 69.

  • 931 Peers v Greece No 28524/95 (2001) para 104 (no segregated cells for remand prisoners). Article 5(1)(c) and (3) apply instead.

  • 932 Deweer v Belgium No 6903/75 (1980).

  • 933 See Heaney and McGuiness v Ireland No 34720/97 (2000).

  • 934 Konstas v Greece No 53466/07 (2011) para 37. See also Nölkenbockhoff v Germany No 10300/83 (1987) para 46 PC.

  • 935 Phillips v UK No 41087/98 (2001) para 35. But the presumption of innocence is a part of the general fair hearing requirement in Article 6(1), which does apply to the sentencing stage: ibid.

  • 936 Geerings v Netherlands No 30810/03 (2007) para 43.

  • 937 Böhmer v Germany No 37568/97 (2002). See also Krebs v Germany No 68556/13 (2020) para 60. Contrast Müller v Germany No 54963/08 (2014) para 54 (court’s language refusing probation ‘unfortunate’, but not statement of guilt).

  • 938 Adolf v Austria No 8269/78 (1982). See also Teodor v Romania No 46878/06 (2013).

  • 939 Minelli v Switzerland No 8660/79 (1983).

  • 940 Sekanina v Austria No 13126/87 (1993); Lamanna v Austria No 28923/95 (2001); Hammern v Norway No 30287/96 (2003); Bok v Netherlands No 45482/06 (2011). Article 6(2) does not apply to miscarriage of justice cases referred for judicial review: Callaghan v UK No 14739/89, 60 DR 296 (1989) DA.

  • 941 Vassilios Stavropoulos v Greece No 35522/04 (2007) (administrative court proceedings related to allegations of fraud of which applicant had been acquitted). But see Moullet v France No 27521/04 (2007) DA.

  • 942 Magnitskiy v Russia Nos 32631/09 and 53799/12 (2019) para 284 (posthumous conviction: violation). See also AP and Others v Switzerland No 19958/92 (1997) para 48 (heirs convicted of alleged tax evasion by deceased accused: violation).

  • 943 No 18731/91 1996-I para 54 GC. For the facts, see section 3.II.g, p 429. Contrast Heaney and McGuiness v Ireland No 34720/97 (2000), section 3.II.g, p 430.

  • 944 No 33501/96 (2001). But see now the approach to road traffic offences in O’Halloran and Francis v UK Nos 15809/02 and 25624/02 (2007) para 62 GC.

  • 945 Lingens and Leitgeb v Austria No 8803/79, 26 DR 171 (1981) DA (burden of proof on defence in criminal defamation proceedings to show that statement is true; no breach of Article 6(2)).

  • 946 Salabiaku v France No 10519/83 (1988) para 28.

  • 947 ibid para 30. See also Janosevic v Sweden No 34619/97 (2002); Busuttil v Malta No 48431/18 (2021) paras 49–50.

  • 948 X v UK No 5124/71, 42 CD 135 (1972) DA.

  • 949 AG v Malta No 16641/90 (1991) DA and Busuttil v Malta No 48431/18 (2021) paras 53–56. Cf Radio France and Others v France No 53984/00 (2004).

  • 950 Bullock v UK No 29102/95 (1996) DA.

  • 951 Klouvi v France No 30754/03 (2011) (allegation of rape).

  • 952 X v Austria No 2291/64, 24 CD 20 (1967) DA.

  • 953 Samoilă and Cionca v Romania No 33065/03 (2008).

  • 954 X and Y v Germany No 8744/79, 32 DR 141 (1983) DA.

  • 955 X v Germany No 2646/65 (1966) DA. Cf Sainte Marie v France 12981/87 (1992), section 3.V.c, p 458.

  • 956 Cuvillers and Da Luz v France No 55052/00 (2003) DA.

  • 957 X v UK No 5076/71 (1972) DA. See also Duhs v Sweden No 12995/87 (1990) DA (out-of-court car-parking fines). And see Panarisi v Italy No 46794/99 (2007).

  • 958 Allen v UK No 25424/09 (2013) para 94 GC.

  • 959 No 8660/79 (1983) para 38. See also Adolf v Austria No 8269/78 (1982). And see GIEM and Others v Italy Nos 1828/06 et al (2018) para 317 GC (applicant acquitted on appeal of unlawful site development; although case had become statute-barred, the Court of Cassation indicated guilt and re-activated court confiscation order: Article 6(2) violation).

  • 960 Cf Yassar Hussain v UK No 8866/04 (2006) and Ashendon and Jones v UK Nos 35730/07 and 4285/08 (2011). See also Poncelet v Belgium No 44418/07 (2010). And see Farzaliyev v Azerbaijan No 29620/07 (2020) para 67 (court statements in civil compensation proceedings after criminal proceedings discontinued against applicant indicated his guilt).

  • 961 Bikas v Germany No 76607/13 (2018) para 51 and Ekşioğlu and Mosturoğlu v Turkey Nos 2006/13 and 10857/13 (2021) para 31 (disciplinary proceedings occurring while criminal case pending).

  • 962 See, eg, Lutz v Germany No 9912/82 (1987) PC.

  • 963 See, eg, Sekanina v Austria No 13126/87 (1993).

  • 964 See, eg, Grabchuk v Ukraine No 8599/02 (2006).

  • 965 See, eg, Lagardère v France No 18851/07 (2012).

  • 966 See, eg, Šikić v Croatia No 9143/08 (2010) and Güç v Turkey No 15374/11 (2018) paras 41–42.

  • 967 Kapetanios and Others v Greece Nos 3453/12 et al (2015). See also Dicle and Sadak v Turkey No 48621/07 (2015).

  • 968 Allen v UK No 25424/09 (2013) para 125 GC (statements were about whether there has been a ‘miscarriage of justice’, not about guilt: no violation). See also Bikas v Germany No 76607/13 (2018) para 46.

  • 969 See, eg, Lutz v Germany No 9912/82 (1987) PC. Cf Milachikj v North Macedonia No 44773/16 (2021) para 35 (‘unfortunate language’ in compensation claim following discontinuance not a violation).

  • 970 Yaşar Kemal Gökçeli v Turkey Nos 27215/95 and 36194/97 (2003).

  • 971 Del Latte v Netherlands No 44760/98 (2004) and Geerings v Netherlands No 30810/03 (2007).

  • 972 Sekanina v Austria No 13126/87 (1993) and Asan Rushiti v Austria No 28389/95 (2000). Adverse comments on the acquitted person’s conduct leading to their prosecution or during the proceedings, but not on their guilt, are not a breach: Ashendon and Jones v UK Nos 35730/07 and 4285/08 (2011) paras 51, 54 and Fashanu v UK No 38440/97 (1998) DA.

  • 973 Hibbert v Netherlands No 38087/97 (1999) DA. See also Allen v UK No 25424/09 (2013) GC (statements as to whether there has been a ‘miscarriage of justice’ but not guilt not a violation).

  • 974 Allen v UK, ibid para 125. See, eg, Müller v Germany No 54963/08 (2014) para 54 (court’s language refusing probation ‘unfortunate’, but not an indication of guilt).

  • 975 Vulakh and Others v Russia No 33468/03 (2012). See also Karaman v Germany No 17103/10 (2014).

  • 976 X v Austria No 9295/81, 30 DR 227 (1982) DA and Diamantides v Greece (No 2) No 71563/01 (2005). But civil liability may be found on the same facts using a lower standard of proof, provided that the civil court does not question the acquittal in so doing: see Ringvold v Norway No 34964/97 (2003) and Y v Norway 56568/00 (2003).

  • 977 Farragut v France No 10103/82, 39 DR 186 (1984) DA.

  • 978 No 73797/01 (2005) GC. See also Vardan Martirosyan v Armenia No 13610/12 (2021) para 90 (judicial remarks when extending detention on remand).

  • 979 No 58442/00 (2002).

  • 980 See Austria v Italy No 778/60 (1963) Com Rep; CM Res DH (63) 3; Nielsen v Denmark No 343/57 (1959), DA, 2 YB 412; X, Y, Z v Austria No 7950/77,19 DR 213 (1980) DA. In determining whether proceedings have been allowed to get out of hand to the prejudice of the accused, allowance may be made for different national temperaments and legal traditions: Austria v Italy, ibid.

  • 981 As in Buscemi v Italy No 29569/95 (1999), section 3.V.c, p 460.

  • 982 No 48297/99 (2002). Cf Allenet de Ribemont v France No 15175/89 (1995) paras 37, 41 (police press conference statement of guilt); Fatullayev v Azerbaijan No 40984/07 (2010) para 162; and GCP v Romania No 20899/03 (2011). See also Batiashvili v Georgia No 8284/07 (2019) (‘manipulation’ and dissemination to the media by the government of a telephone conversation recording suggesting guilt: violation).

  • 983 No 42095/98 (2000). See also Virabyan v Armenia No 40094/05 (2012) paras 188–192 and Banevi v Bulgaria No 25658/19 (2021) para 151. And see Natsvlishvili and Togonidze v Georgia No 9043/05 (2014) para 104 (governor’s television interview) and Mustafa (Abu Hamza) v UK No 31411/07 (2011) para 41 DA (minister’s withdrawal of applicant’s citizenship): not sufficiently closely linked with prosecutions.

  • 984 See the Lavents case, above. See also GCP v Romania No 20899/03 (2011) para 56 and Yunusova and Yunusov v Azerbijan (No 2) No 68817/14 (2020) para 125.

  • 985 Nos 6091/06 et al (2016).

  • 986 Tripon v Romania No 27062/04 (2012) DA.

  • 987 No 58939/00 (2010).

  • 988 No 29864/03 (2013).

  • 989 See, eg, Shuvalov v Estonia No 39820/08 (2012) para 82 and Natsvlishvili and Togonidze v Georgia No 9043/05 (2014) para 105.

  • 990 Adolf v Austria No 8269/78 (1982) para 40 and Arrigo and Vella v Malta No 6569/04 (2005) DA.

  • 991 Austria v Italy No 788/60 (1963) Com Rep; CM Res DH (63) 3.

  • 992 See section 3.II, p 414.

  • 993 For its meaning, see section 2, p 379.

  • 994 No 13972/88 (1993) para 36. Cf Öcalan v Turkey No 46221/99 para 131 GC.

  • 995 See, eg, Granger v UK No 11932/86 (1990) para 44. Cf Meftah and Others v France Nos 32911/96 et al (2002) para 41 GC.

  • 996 Pelissier and Sassi v France No 25444/94 (1999) para 51 GC.

  • 997 But, unlike Article 5(2), Article 6(3)(a) may apply to non-arrested persons who are subject to a criminal charge: see, eg, Brozicek v Italy No 10964/84 (1989) para 41 PC.

  • 998 Pélissier and Sassi v France No 25444/94 (1999) para 54 GC and Nevzlin v Russia No 26679/08 (2022) para 137.

  • 999 Pélissier and Sassi v France, ibid para 51 GC.

  • 1000 ibid para 62. See also Mattocia v Italy No 23969/94 (2000) para 67.

  • 1001 Pélissier and Sassi v France, ibid para 51 GC. For other appellate re-characterization violations, see, eg, Gelenidze v Georgia No 72916/10 (2019) para 35 and Drassich v Italy No 25575/04 (2007) para 42.

  • 1002 Zhelezov v Bulgaria No 70560/13 (2021) para 28. See also Dallos v Hungary No 29082/95 (2001).

  • 1003 De Salvador Torres v Spain No 21525/93 (1996) para 33. See also Gea Catalán v Spain No 19160/91 (1995).

  • 1004 Pélissier and Sassi v France No 25444/94 (1999) para 51 GC. See also Mattoccia v Italy No 23969/94 2000-IX para 59 (‘material facts’ required).

  • 1005 Kamasinski v Austria No 9783/82 (1989) para 80.

  • 1006 Campbell and Fell v UK Nos 7819/77 and 7878/77 (1984) para 96.

  • 1007 No 10889/84 (1988) DA. In an extreme case of delay, Article 6(3)(a) was violated when the applicant had not received the required information or been formally charged nearly ten years after he became subject to a criminal charge: Casse v Luxembourg No 40327/02 (2006).

  • 1008 Fox and Others v UK Nos 12244/86 et al (1988) DA.

  • 1009 Mattoccia v Italy No 23969/94 (2000) para 60. Cf Sofia v San Marino No 38977/15 (2017) para 48 DA and Uche v Switzerland No 12211/09 (2018) para 23.

  • 1010 Nielsen v Denmark No 343/57 (1959) DA.

  • 1011 Pélissier and Sassi v France No 25444/94 (1999) para 54 GC.

  • 1012 No 9783/82 (1989) para 81.

  • 1013 C v Italy No 10889/84 (1988) DA. But the accused may be shown to have avoided delivery of a warrant with the required information: Erdogan v Turkey No 14723/89 (1992) DA.

  • 1014 Vaudelle v France No 35683/97 (2001) para 65.

  • 1015 Vizgirda v Slovenia No 59868/08 (2018) para 81 (Article 6(3)(a) and (e)).

  • 1016 Erdem v Germany No 38321/97 (1999) DA.

  • 1017 Vaudelle v France No 35683/97 (2001).

  • 1018 Rook v Germany No 1586/15 (2019) para 56.

  • 1019 Mayzit v Russia No 63378/00 (2005) para 79.

  • 1020 Iglin v Ukraine No 39908/05 (2012) para 65. The defence must be informed of any time limit for the submission of pleadings: Vacher v France No 20368/92 (1996).

  • 1021 OAO Neftyanaya Kompaniya Yukos v Russia No 14902/04 (2011) para 540. Cf Khodorkovskiy and Lebedev v Russia Nos 11082/06 and 13772/05 (2013) paras 575–586.

  • 1022 Muchnik and Mordovin v Russia Nos 23814/15 and 2707/16 (2019) para 38 (Committee decision).

  • 1023 Mattick v Germany No 62116/00 (2005) DA.

  • 1024 GB v France No 44069/98 (2001) paras 62–63.

  • 1025 Galović v Croatia No 45512/11 (2021) para 82. See also HH v Austria No 5523/72 (1974) DA (appeal proceedings may take less time).

  • 1026 Kikabidze v Georgia No 57642/12 (2021) para 49.

  • 1027 Twalib v Greece No 24294/94 (1998) paras 40–42.

  • 1028 No 46221/99 (2005) para 147 GC. Cf Khodorkovskiy and Lebedev v Russia Nos 11082/06 and 13772/05 (2013) paras 575–586 and Nevzlin v Russia No 26679/08 (2022) paras 149–156.

  • 1029 Galstyan v Armenia No 26986/03 (2007) paras 85–87. Cf. Dridi v Germany No 35778/11 (2018) and Mikhaylova v Ukraine No 10644/08 (2018). Fast-track procedures are permissible if the defence is not prejudiced: Galstyan v Armenia, ibid para 85.

  • 1030 Campbell and Fell v UK Nos 7819/77 and 7878/77 (1984) para 98.

  • 1031 Sadak and Others v Turkey (No 1) Nos 29900/96 et al (2001) para 58.

  • 1032 JJM v UK No 4681/70 (1972) DA; Campbell and Fell v UK Nos 7819/77 and 7878/77 (1984) para 98; Galstyan v Armenia No 26986/03 (2007) para 85.

  • 1033 Rook v Germany No 1586/15 (2019) para 57 (access to surveillance tapes). Cf Murtazaliyeva v Russia No 36658/05 (2018) para 91 GC.

  • 1034 Beraru v Romania No 40107/04 (2014) para 70. On the case file in civil law systems, see Stavros, The Guarantees for the Accused Person in Article 6 European Convention on Human Rights, 1993, pp 181–183.

  • 1035 Sigurður Einarsson and Others v Iceland No 39757/15 (2019) para 86.

  • 1036 See, eg, Jasper v UK No 27052/95 (2000) para 50 GC. These cases were decided under the rights to equality of arms and adversarial proceedings in Article 6(1), not Article 6(3)(b).

  • 1037 No 62936/00 (2008) paras 216–218. A similar restriction on access to handwritten trial notes was also a violation: ibid.

  • 1038 Nos 75734/12 et al (2019) paras 252, 254. Cf Mayzit v Russia No 63378/00 (2005) para 81.

  • 1039 It also violated the Article 6(1) right to participate effectively: see section 3.II.b, p 418.

  • 1040 Campbell and Fell v UK Nos 7819/77 and 7878/77, A 80 (1984) para 99.

  • 1041 See Ch 11, section 4.XXVI, p 573. Article 6(3)(b) was applied in Domenichini v Italy No 15943/90 (1996) para 39 (delay in sending letter to a lawyer: violation).

  • 1042 X v Austria No 6185/73, 2 DR 70 (1975) DA (Article 6(3)(b) decision).

  • 1043 Hadjianastassiou v Greece No 12945/87, A 252 (1992). An abridged trial court judgment will suffice if the applicant’s defence rights are not ‘unduly affected’: Zoon v Netherlands No 29202/95 (2000) para 50. See also Kremzow v Austria No 12350/86, A 268-B (1993).

  • 1044 R v UK No 11396/85, 50 DR 179 (1986) DA.

  • 1045 Pakelli v Germany No 8398/78, B 53 (1981) Com Rep; CM Res DH (81) (3) para 84.

  • 1046 No 56402/12 (2018) para 126 GC.

  • 1047 The Court did add that the ban on self-representation might, ‘under certain circumstances, be excessive’: No 56402/12 (2018) para 137. See also Galstyan v Armenia No 26986/03 (2007) para 91 (‘interests of justice’ did not require mandatory legal representation where the maximum sentence was 15 days imprisonment).

  • 1048 ibid paras 146, 153.

  • 1049 Thirty-one out of 35 states parties surveyed had a general rule allowing self-representation, with certain exceptions: ibid para 81.

  • 1050 See Correia de Matos v Portugal No 56402/12 (2018) GC, Communication 1123/2002 (2006), UN Human Rights Committee (decision in favour of the same accused regarding a prosecution for an earlier offence raising the same point).

  • 1051 Cf UN Human Rights Commitee’s General Comment 32, para 37, interpreting an identically worded text in Article 14(3)(d) ICCPR as providing such a general rule, with obstruction of justice by the accused, the accused’s incapacity to defend him or herself and the protection of vulnerable witnesses from cross-examination as exceptions.

  • 1052 Dayanan v Turkey No 7377/03 (2009) para 32. Cf AT v Luxembourg No 30460/13 (2015) para 67.

  • 1053 See Morris v UK No 38784/97 (2002) para 90 (army officer at court martial) and X v Germany No 509/59, 3 YB 174 (1960) DA (probationary lawyer). See also Engel and Others v Netherlands Nos 5100/71 et al, A 22 (1976) para 91 PC. But a non-lawyer might lack required legal knowledge: Mayzit v Russia No 63378/00 (2005) para 68 (mother and sister). The following paragraphs in this section refer to assistance by a lawyer but apply also to other legal assistance as appropriate.

  • 1054 In the drafting of Article 14, ICCPR, upon which Article 6 is based, the words ‘qualified representative’ were replaced by ‘legal assistance’ so that they ‘did not necessarily mean a lawyer, but merely assistance in the legal conduct of a case’: UN Doc E/CN.4/SR 107, p 6.

  • 1055 No 71409/10 (2018) para 124 GC. The Grand Chamber’s statements also apply as appropriate to persons subject to a ‘criminal charge’ who are not under arrest: see, eg, Laska and Lika v Albania Nos 12315/04 and 17605/04 (2010) paras 11–15 and 67.

  • 1056 Ed: the accused’s right to consult with his lawyer before interrogation must be ‘guaranteed by law’: AT v Luxembourg No 30460/13 (2015) para 87.

  • 1057 Ed: these include the the right to remain silent: Fariz Ahmadov v Azerbaijan No 40321/07 (2021) para 51. The presence of a lawyer is required during questioning and when documents are signed by the accused (eg to confirm waiver of the right to a lawyer): ibid.

  • 1058 European states do not all guarantee the presence of a lawyer during questioning, but there is a trend in that direction: see Giannoulopoulos, 16 HRLR 103 (2016). On presence during the questioning of juveniles, see Panovits v Cyprus No 4268/04 (2008) paras 66–77 and Blokhin v Russia No 47152/06 (2016) paras 205–209 GC.

  • 1059 Aras v Turkey (No 2) No 15065/07 (2014) para 40.

  • 1060 Fariz Ahmadov v Azerbaijan No 40321/07 (2021) para 51.

  • 1061 Beuze v Belgium No 71409/10 (2018) para 135 GC. See also Laska and Lika v Albania Nos 12315/04 and 17605/04 (2010) paras 11–15 and 67 (identification parade).

  • 1062 No 39846/98 (2001) para 53. See also the Doyle case at n 1074.

  • 1063 Beuze v Belgium No 71409/10 (2018) para 136 GC.

  • 1064 ibid para 143.

  • 1065 Ibrahim and Others v UK Nos 50541/08 et al (2016) para 259 GC.

  • 1066 Beuze v Belgium No 71409/10 (2018) para 142. A restriction that does not allow an individualized assessment, whether based on legislation or established practice, is not permitted: see, eg, the Beuze and Doyle cases respectively at nn 1063 and 1074.

  • 1067 ibid para 145 (emphasis added).

  • 1068 Joint concurring opinion of Judges Yudkivska, Vučinić, Turković, and Hu"seynov. See also Celiksoy, 10 NJECL 342 (2019).

  • 1069 No 36391/02 (2008) para 55 GC.

  • 1070 ibid, wording of the operative clause (dispositif) of the judgment.

  • 1071 See, eg, Dayanan v Turkey No 7377/03 (2009) paras 33–34.

  • 1072 See section 3.II, p 414.

  • 1073 Cf Ruşen Bayar v Turkey No 25253/08 (2019) para 134: no ‘compelling reasons’; ‘very strict scrutiny’ led to a ruling that overall fairness was prejudiced.

  • 1074 No 51979/17 (2019) para 102. Cf Mehmet Ali Alieser v Turkey No 1399/07 (2019) and Pervane v Turkey No 74553/11 (2020) (no ‘compelling reasons’, but overall fairness not irretrievably prejudiced).

  • 1075 Nos 50541/08 et al (2016) GC. The ‘compelling reasons’ requirement was used by the Court before the Beuze case.

  • 1076 ibid para 294 GC.

  • 1077 Dvorski v Croatia No 25703/11 (2015) para 79 GC. Cf the Correia de Matos, section 5.IV, p 480. See also Croissant v Germany No 13611/88 (1992) para 29.

  • 1078 See, eg, Zagorodniy v Ukraine No 27004/06 (2011) para 53 (lawyer not a licensed advocate).

  • 1079 Meftah and Others v France Nos 32911/96 et al (2002) para 47 GC (Court of Cassation Bar). A fortiori non-lawyers might lack required procedural knowledge): Mayzit v Russia No 63378/00 (2005) para 68.

  • 1080 Ensslin and Others v Germany Nos 7572/76, et al (1978) para 20 DA.

  • 1081 X and Y v Germany Nos 5217/71 and 5367/72, 42 CD 139 (1972).

  • 1082 X v UK No 6298/73, 2 Digest 831 (1975) DA.

  • 1083 K v Denmark No 19524/92 (1993) DA.

  • 1084 X v UK No 8295/78 (1978) DA (prosecution of barrister’s father).

  • 1085 Ensslin and Others v Germany No 7572/76 (1978) para 19 DA.

  • 1086 De Buch and Koolen Nos 1420/62 et al (1963) DA. See also Martin v Estonia No 35985/09 (2013) para 91 (pressure to terminate representation by a particular lawyer).

  • 1087 Dvorski v Estonia No 25703/11 (2015) para 103 GC (choice of lawyer not respected; irretrievable prejudice, violation).

  • 1088 Beuze v Belgium No 71409/10 (2018) para 129 GC.

  • 1089 Simeonovi v Bulgaria No 21980/04 (2017) para 115 GC. For the rules on waiver of Article 6 rights, see Ch 1, section 1, p 378.

  • 1090 Salduz v Turkey No 36391/02 (2008) para 59 GC. Cf Yoldaş v Turkey No 27503/04 (2010) para 52. See also Martin v Estonia No 35985/09 (2013).

  • 1091 Pishchalnikov v Russia No 7025/04 (2009). See also Şaman v Turkey No 35292/05 (2011) para 35 (poor command of Turkish impeded understanding of consequences: no waiver of right to a lawyer).

  • 1092 FCB v Italy No 12151/86, A 208-B (1991) paras 29, 35.

  • 1093 Poitrimol v France No 14032/88 (1993).

  • 1094 Nos 7819/77 and 7878/77 (1984). See further Ezeh and Connors v UK Nos 39665/98 and 40086/98 (2003) GC.

  • 1095 Van Geyseghem v Belgium No 26103/95 (1999) GC. There is a breach even though the accused violates a legal obligation by not attending (Poitrimol v France No 14032/88 (1993)) and a conviction in absentia may be set aside in later proceedings (Van Geyseghem case). See also Lala v Netherlands No 14861/89 (1994) and Pietiläinen v Finland No 13566/06 (2009).

  • 1096 Correia de Matos v Portugal No 56402/12 (2018) para 123 GC.

  • 1097 No 8398/78 (1983) para 34.

  • 1098 No 38784/97 (2002) para 89. See also Twalib v Greece No 24294/94 (1998) para 51 and RD v Poland Nos 29692/96 and 34612/97 (2001) para 45.

  • 1099 No 12744/87 (1991) para 33.

  • 1100 The Court emphasized the possible, rather than the likely, penalty. In appeal proceedings, the actual sentence imposed takes over: see, eg, Boner v UK No 18711/91 (1994) para 41 and Maxwell v UK No 18949/91 (1994) para 38, although any possibility of the sentence being increased must be relevant. See also Pham Hoang v France No 13191/87 (1997).

  • 1101 No 45681/99 (2003) para 39. In Mikhaylova v Russia No 46998/08 (2015) paras 96–102, a modest maximum fine (€28) was outweighed by other considerations.

  • 1102 No 19380/92 (1996) para 61 GC (possible three months’ imprisonment for non-payment of community charge). See also Mikhaylova v Russia No 46998/08 (2015) (Convention rights at stake).

  • 1103 See, eg, Mikhaylova v Russia No 46998/08 (2015) para 97. See also Granger v UK No 11932/86 (1990); Quaranta v Switzerland No 12744/87 (1991); and Pham Hoang v France No 13191/87 (1992).

  • 1104 See the Granger and Quaranta cases discussed earlier; Twalib v Greece No 24294/94 (1998) (foreigner with no knowledge of the language or legal system); Vaudelle v France No 35683/97 (2001) (mental state); Barsom and Varli v Sweden Nos 40766/06 and 40831/06 (2008) DA (businessmen wsell able to argue tax surcharge point).

  • 1105 Timergaliyev v Russia No 40631/02 (2008).

  • 1106 No 6694/74 (1980) para 35.

  • 1107 The same must apply to the chances of acquittal at the trial stage. In Monnell and Morris v UK Nos 9562/81 and 9818/82 (1987) legal aid was was not required for leave to appeal applications.

  • 1108 No 18711/91 (1994) paras 41–44. Cf Murdoch v UK No 25523/94 (1996); Com Rep: CM Res DH (3) paras 38–41.

  • 1109 Quaranta v Switzerland No 12744/87 (1991) para 37.

  • 1110 No 26891/95 (2003) para 54. See also Croissant v Germany No 13611/88 (1992) and Franquesa Freixas v Spain No 53590/99 (2000) DA.

  • 1111 Pugžlys v Poland No 446/10 (2016) para 84.

  • 1112 See Airey v Ireland No 6289/73 (1979).

  • 1113 But see M v UK No 9728/82 (1983) DA (recognition that financial restraints may be necessary).

  • 1114 Artico v Italy No 6694/74 (1980) para 33.

  • 1115 No 9783/82 A 168 (1989) para 65.

  • 1116 See Ebanks v UK No 36822/06 (2010) para 72. But the state may be directly responsible if the lawyer is a ‘public defender’ in the employ of the state.

  • 1117 Kamasinski v Austria No 9783/82 (1989) para 65. For cases in which there was no ‘manifest failure’ see, eg, Ebanks v UK No 36822/06 (2010) paras 77–85 and Rutkowski v Poland No 45995/99 (2000) para 3 DA.

  • 1118 Güveć v Turkey No 70337/01 (2009) para 131.

  • 1119 But see Tripodi v Italy No 13743/88 (1994) para 30.

  • 1120 Artico v Italy No 6694/74 (1980). See also Daud v Portugal No 22600/93 (1998) para 42 and Vamvakas v Greece (No 2) No 2870/11 (2015) para 42.

  • 1121 No 38830/97 (2002) para 68.

  • 1122 Contrast Alvarez Sánchez v Spain No 50720/99 (2001) DA (appeal by legal aid lawyer out of time: no violation on the facts).

  • 1123 Czekalla v Portugal No 38830/97 (2002) para 60.

  • 1124 See Tripodi v Italy No 13743/88 (1994) (lawyer failed to ask for adjournment) and Stanford v UK No 16757/90 (1994) (lawyer failed to raise accused’s hearing problem).

  • 1125 But see Rutkowski v Poland No 45995/99 (2000) DA (relevant that a legal aid lawyer was not ‘negligent or superficial’).

  • 1126 Öcalan v Turkey No 46221/99 (2005) para 133 GC. Cf Beuze v Belgium No 71409/10 (2018) para 133 GC.

  • 1127 Nos 12629/87 and 13965/88 (1991) para 48. See also Brennan v UK No 39846/98 (2001) para 63 (police officer).

  • 1128 See Can v Austria No 9300/81 (1984) Com Rep; CM Res DH (83) 3 paras 57–58 (F Sett before Court) and Campbell and Fell v UK Nos 7819/77 and 7878/77 (1984).

  • 1129 No 46221/99 (2005) para 135 GC.

  • 1130 No 21272/03 (2010) GC. Cf Bogumil v Portugal No 35228/03 (2008).

  • 1131 Goddi v Italy No 8966/80 (1984) para 30.

  • 1132 See also Franquesa Freixas v Spain No 53590/99 (2000) DA (labour, not criminal, lawyer appointed; no breach on the facts).

  • 1133 See Köplinger v Austria No 1850/63 Com Rep (1966); CM Res DH (83) 3.

  • 1134 Nos 2653/13 and 60980/14 (2016) para 153. See also the Article 6(1) right to take part effectively in the proceedings.

  • 1135 Zagaria v Italy No 58295/00 (2007) para 36 (violation). Article 8 will also apply: see Ch 11, section 4.VI, p 538.

  • 1136 Khodorkovskiy and Lebedev v Russia Nos 11082/06 and 13772/05 (2013) para 634. Article 8 will also apply: see section Ch 11, 4.VII, p 540.

  • 1137 Sakhnovskiy v Russia No 21272/03 (2010) paras 104, 107 GC.

  • 1138 Lanz v Austria No 24430/94 (2002) para 52. See also Egue v France No 11256/84 (1988) DA; and Castravet v Moldova No 23393/05 (2007).

  • 1139 No 24430/94 (2002).

  • 1140 No 21842/93 (1997) DA. The limited period of surveillance was relevant.

  • 1141 Kurup v Denmark No 11219/84 (1985) DA.

  • 1142 M v Netherlands No 2156/10 (2017) paras 94–97.

  • 1143 Can v Austria No 9300/81, B 79 (1984) Com Rep; CM Res DH (84) 3 para 54 (F Sett before Court).

  • 1144 For its meaning of this phrase, see section 2.I, p 379.

  • 1145 Al-Khawaja and Tahery v UK Nos 26766/05 and 22228/06 (2011) para 118 GC.

  • 1146 X v Germany No 8414/78 (1979) DA (police) and Ferraro Bravo v Italy No 9627/81 (1984) DA (investigating judge).

  • 1147 Schertenleib v Switzerland No 8339/78 (1979) DA.

  • 1148 Engel and Others v Netherlands Nos 5100/71 et al (1976) para 91 PC and Bönisch v Austria No 8658/79 (1985) para 32. And see Oyston v UK No 42011/98 (2002) DA (restrictions on questions to rape victim; no breach). Article 6(3)(d) is not limited to ‘equality of arms’; overall fairness is decisive: Vidal v Belgium No 12351/86 (1992) para 33.

  • 1149 Kurup v Denmark No 11219/84 (1985) DA.

  • 1150 ibid. Cf AM v UK No 20657/92 (1992) DA (screening of witness from accused, but not his lawyer, permissible).

  • 1151 Graviano v Italy No 10075/02 (2005). See also the principle of immediacy discussed earlier in section 3.II.f, p 426.

  • 1152 Kostovski v Netherlands No 11454/85 (1989) PC. Such statements include depositions to the police: Kaste and Mathisen v Norway Nos 18885/04 and 21166/04 (2006) para 53.

  • 1153 Lucà v Italy No 33354/96 (2001).

  • 1154 Cardot v France No 11069/84 (1991) para 51 Com Rep; CM Res DH (3). See also X v UK No 10083/82 (1983) DA.

  • 1155 Constantinides v Greece No 76438/12 (2016) paras 37–38.

  • 1156 Scoppola v Italy (No 2) No 10249/03 (2009) para 135 GC. See also Rudnichenko v Ukraine No 2775/07 (2013). For the rules on waiver of Article 6 rights generally, see section 1, p 278.

  • 1157 Murtazaliyeva v Russia No 36658/05 (2018) para 127 GC.

  • 1158 ibid para 140 GC.

  • 1159 ibid paras 158, 160 GC.

  • 1160 No 48898/99 para 29 GC.

  • 1161 Murtazaliyeva v Russia, ibid para 160. See, eg, Olga Kudrina v Russia No 34313/06 (2021) para 39 (testimony of participants in protest ‘necessary’).

  • 1162 Murtazaliyeva v Russia No 36658/05 (2018) para 166 GC.

  • 1163 No 57642/12 (2021) para 59.

  • 1164 Murtazaliyeva v Russia No 36658/05 (2018) para 168.

  • 1165 Sadak and Others v Turkey (No 1) Nos 29900/96 et al (2001).

  • 1166 Ubach Mortes v Andorra No 46253/99 (2000) DA (ill-health).

  • 1167 No 31295/11 (2020) para 64.

  • 1168 Al-Khawaja and Tahery v UK Nos 26766/05 and 22228/06 (2011) para 118 GC.

  • 1169 No 26679/08 (2022) paras 168–169 (adjournment requests to study witness pre-trial statements and to recall him for further cross-examination refused).

  • 1170 No 75699/01 (2006). On the forfeiture of the right to cross-examine witnesses by opting for an accelerated procedure leading to a reduced sentence, see Panarisi v Italy No 46794/99 (2007).

  • 1171 Nos 26766/05 and 22228/06 (2011) paras 118–119, 147 GC.

  • 1172 No 9154/10 (2015) paras 110–118 GC.

  • 1173 ibid para 113.

  • 1174 See Doorson v Netherlands No 20524/92 (1996). In R v Horncastle and Others [2009] UKSC 14 (SC), the UK Supreme Court had not followed Doorson in a hearsay case. After the ruling in Al-Khawaja reversing Doorson, in Horncastle v UK No 4184/10 (2014) the Strasbourg Court found no violation of Article 6(1) and (3).

  • 1175 Schatschaschwili v Germany No 9154/10 (2015) para 116 GC.

  • 1176 ibid paras 119–122 GC.

  • 1177 As in the Al-Khawaja case.

  • 1178 See, eg, Kennedy v UK No 36428/97 (1998) DA; Gani v Spain No 61800/08 (2013); and Matytsina v Russia No 58428/10 (2014) para 165.

  • 1179 See, eg, Isgrò v Italy No 11339/85 (1991) and Verdam v Netherlands No 35253/97 (1999) DA.

  • 1180 See, eg, SN v Sweden No 34209/96 (2002) (victim of sexual offender confronding offender). For other reasons that have been accepted, see Unterpertinger v Austria No 9120/80 A 110 (1986) (family member) and Lucá v Italy No 33354/96 (2001) (co-accused).

  • 1181 Lucić v Croatia No 5699/11 (2014) para 79. The fact that a witness is abroad is not a good reason: Paić v Croatia No 47082/12 (2016) para 38A. But the witness being a fugitive on the run abroad is a good reason: Dodoja v Croatia No 53587/17 (2021) paras 57–59. The absence of a power in law to summon a witness whose whereabouts are known is not an excuse: Mild and Virtanen v Finland Nos 39481/98 and 40227/98 (2005).

  • 1182 Al-Khawaja and Tahery v UK Nos 26766/05 and 22228/08 (2011) para 122 GC.

  • 1183 ibid para 124.

  • 1184 ibid para 125.

  • 1185 ibid. See also Van Wesenbeeck v Belgium Nos 67496/10 and 52936/12 (2017), at n 000, on undercover agents.

  • 1186 ibid para 131. See Fikret Karahan v Turkey No 53848/07 (2021) para 25 (absent witness’s photo identification only evidence relied on in judgment).

  • 1187 ibid. See also Simon Price v UK No 15602/07 (2016) para 131 (other substantial evidence supporting absent witness’s statements: no violation) and.

  • 1188 ibid para 147. See Paić v Croatia No 47082/12 (2016) and Faysal Pamuk v Turkey No 430/13 (2022) paras 64–75 (inadequate procedural safeguards).

  • 1189 Schatschaschwili v Germany No 9154/10 (2015) paras 126–131 GC.

  • 1190 See, eg, the pre-Al-Khawaja cases of Kostovski v Netherlands No 11454/85 (1989) PC; Van Mechelen v Netherlands Nos 21363/93 et al (1997) (inadequate procedures); and Kok v Netherlands No 43149/98 (2000) DA (adequate procedure). See also Birutis and Others v Lithuania Nos 47698/99 and 48115/99 (2002); Sapunarescu v Germany No 22007/03 (2006) DA; and Balta and Demir v Turkey No 48628/12 (2015). Cross-examination of witnesses by the defence at the investigative stage does not occur in common law systems.

  • 1191 On the Al-Khawaja case, see De Wilde, 17 IJ Evidence and Proof 157 (2013); Doak and Huxley-Binns, 73 J Crim L 508 (2009); Wallace, EHRLR 408 (2010). See generally Jackson and Summers, The Internationalisation of Criminal Evidence, 2012, pp 334 ff and Maffei, The Right to Confrontation in Europe, 2nd edn, 2012, ch 4. On the admission of exculpatory hearsay evidence, see Blastland v UK No 12045/86 (1987) DA and Thomas v UK No 19354/02 (2005) DA.

  • 1192 Al-Khawaja and Tahery v UK Nos 26766/05 and 22228/08 (2011) para 127 GC.

  • 1193 Nos 46099/06 and 46699/06 (2012) para 89 DA

  • 1194 Ramanauskas v Lithuania No 74420/01 (2008) para 49 GC. See further, section 3.II.h, p 432 (on entrapment).

  • 1195 Bátěk and Others v Czek Repupblic No 54146/09 (2017) paras 55–59.

  • 1196 Nos 67496/10 and 52936/12 (2017) para 106.

  • 1197 ibid para 146.

  • 1198 No 34209/96 (2002) para 46. For other sex offences cases, see Baegen v Netherlands No 16696/90 Com Rep (1995); CM Res DH (3) (defence failure to use alternative options; no breach); MK v Austria No 28867/95 (1997) DA (expert report sufficient; no breach); PS v Germany No 33900/96 (2001) (no special arrangements; breach); VD v Romania No 7078/02 (2010) (accused of rape; not allowed a DNA test or opportunity to challenge the victim’s statement); and Mika v Sweden No 31243/06 (2009) DA. See also Mayali v France No 69116/01 (2005) and Bocos-Cuesta v Netherlands No 54789/00 (2005) (breaches).

  • 1199 Cf Doorson v Netherlands No 20524/92 (1996) para 76.

  • 1200 For the meaning of this phrase, see 2.I, p 379.

  • 1201 No 9783/82 (1989) para 74. See also Şaman v Turkey No 35292/05 (2011); Baytar v Turkey No 45440/04 (2014) para 49; and KC v Romania No 45060/10 (2018) para 54.

  • 1202 Article 6(3)(e) also applies to pre-trial appearances before a judge, remand hearings, and the translation of the indictment (Luedicke and Others v Germany Nos 6210/73 et al (1978)) and to police questioning once the person is subject to a ‘criminal charge’ (Baytar v Turkey No 45440/04 (2014)).

  • 1203 See Kamasinski v Austria No 9783/82 (1989) para 80 and Sardinas Albo v Italy No 56271/00 (2004) DA. On the waiver of Article 6 rights, see section 1, p 378.

  • 1204 No 59868/08 (2018) paras 86–87. The need for such notification is implicit in the accused’s right to waive their right to an interpreter: ibid para 87.

  • 1205 Vizgirda v Slovenia, ibid para 81. See also the ‘third language’ situation in the Vizgirda case, discussed later.

  • 1206 ibid paras 86–87. Cf Baytar v Turkey No 45440/04 (2014) para 49. Consultation between the judge and the defendant in person is required: Cuscani v UK No 32771/96 (2002) para 38.

  • 1207 ibid para 85.

  • 1208 ibid para 102.

  • 1209 But an accused may be charged for an interpreter provided for him at a hearing that he fails to attend: Fedele v Germany No 11311/84 (1987) DA.

  • 1210 Luedicke and Others v Germany Nos 6210/73 et al (1978) para 40.

  • 1211 ibid para 42.

  • 1212 Kamasinski v Austria No 9783/82 (1989) para 74. Although the text refers to an ‘interpreter’, Article 6(3) extends to translation of documents: Hermi v Italy No 18114/02 (2006) para 70 GC.

  • 1213 Kamasinski v Austria, ibid para 74.

  • 1214 ibid paras 81, 83. Cf Protopapa v Turkey No 16084/90 (2009) para 80. An oral summary of the judgment may suffice to permit an appeal: ibid. See also Hayward v Sweden No 14106/88 (1991) DA.

  • 1215 K v France No 10210/82 (1983) DA and Bideault v France No 11261/84 (1986) DA. See also Lagerblom v Sweden No 26891/95 (2003).

  • 1216 Kamasinski v Austria No 9783/82 (1989) para 74 and Cuscani v UK No 32771/96 (2002) para 38.

  • 1217 X v Austria No 6185/73 (1975) DA.

  • 1218 Kamasinski v Austria No 9783/82 (1989). Cf Vizgirda v Slovenia No 59868/08 (2018) para 79 and Diallo v Sweden No 13205/07 (2010) paras 28–29 DA.

  • 1219 Ucak v UK No 44234/98 (2002) DA. See also Knox v Italy No 76577/13 (2019) para 187 (interpreter exceeded her role; inadequate response by the state).

  • 1220 Frankfurter, Law and Politics, 1939, pp 192–193.

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