EXAMINE THE SCOPE OF ARTICLE 6 OF ECHR – THE RIGHT TO A FAIR TRIAL – ALONGWITH THE ELEMENTS ENCLOSED THERIN.
Article 6 of the European Convention on Human Rights[1] legitimizes the Right to a Fair Trial. Be it as it may the Right finds its way into UK’s legal system through the Human Rights Act[2], along with many other essential rights contained in the ECHR[3]. The Right to a fair trial is designed to deliver a trial that is free from all encumbrances. That is that claimants/defendants are able to proceed in a lawsuit without any clogs and fetters[4] to their liberties, so as to assure a fair trial is achieved.
It may be alleged that the Right itself is an essential remedy for the modern legal system; they’re the two sides of the same coin. The right is one of immense importance for all those who have[5] indulge in any sort of case-proceedings, criminal or civil. Having a vast scope, the right provides a way for today’s adversarial legal-system to operate smoothly, safeguarding both sides. The attitude of the ECHR[6] shows that the Right to a Fair Trial is essential for the doctrine of “Rule of Law” and other associated principles[7]. The European Court of Human Rights[8], which plays an administrative role while also implementing the provisions of ECHR, has time after time upheld the right to a Fair trial, and in only very severe conditions will it be permitted to compromise it.
Any individual[9] having a standing in a court-of-law can file a claim in domestic courts, to ensure that he was afforded a Fair trial. After having exhausted all internal remedies, an individual, may plead the matter before ECtHR, to entertain the question. As mentioned earlier, ECtHR has a strict regime in regards to fair trial, and has upheld the right in countless lawsuits.
Having discussed the background of the Right, it would be appropriate to dissect Article 6. The span of Article 6, in respect to its applicability, is outreaching in the sense that it not only encompasses criminal but also civil matters. As can be seen from the wordings of Article-6(1)[10]. A list of assertions have been made in Article-6(1) for the Right to operate effectually[11], i.e. basically listing out ingredients of a fair trial. However, it is important that the litigations are properly classified; reasons being that certain liberties/reservation don’t apply to civil proceedings. The classification of the litigation is dependent on how the offence/civil wrong are treated under domestic law. Be that as it may it must be further pondered upon in regards to “the nature and/or the severity of any penalty”[12].
It is pertinent to mention that under certain circumstances the elements of a Fair Trial may not be complied with, the Article itself provides for two illustrations[13]. In addition to this the Article also states, regarding the trial, that the “press and public” may be excluded from the trials in interest of certain factors[14]. Subsequently the trial can be made undisclosed partially or completely or as the Article states to the extent strictly necessary in the opinion of the court. Such exclusions can be linked with Military hearings, where the tribunal is concerned with national security, or a threat against the state, with which the tribunal would not want to go public amongst many other scenarios.
Moving on the scope of the ingredients of Article-6 are hereafter examined, first of which is, access to courts, which is impliedly available under Article 6 to every individual. It is possible under the appropriate conditions that an individual revokes his/her access to court, hence displaying that access to courts is not absolute and may be revoked[15]. The Convention has put forward the idea that a Right must be practical and effective, and the same is portrayed by the attitude of the ECtHR[16][17].
For a trial to operate fairly and justly it is important that the adjudicators presiding in the matter be independent and impartial. If the adjudicator/juror(s) are not independent and/or impartial, consequently their decision would become a breach of a fair trial. In the case of Findlay v United Kingdom[18] the ECtHR laid out a list of factors to determine the independence of a Court[19]. Proof of independence can be portrayed by cases such as R. v Secretary of State[20]. Hence it is essential that members of the judiciary be completely separated and has no outwardly influence above all. The element of impartiality is of importance just the same, but of much concern due to advancement in technology. Impartiality is based on derivation of both subjective as well as objective standards; hence adjudicators must not exhibit hints of biasness. A cause of concern amongst many is the advancement of social-media, whereas it has become difficult to believe that each and every adjudicator is impartial. To further the understanding of this concept one can relate to the violations conducted by the adjudicators during the Nazi regime, by trying Jewish ethnicity cases, as the adjudicators were biased and discriminated Jews.
Simultaneously the notion of a fair hearing, a central element to the Right to a fair trial, has a number of essential components[21]. An essential element in a fair trial is that the parties be at equal arm’s length in criminal along-with civil[22] proceedings, meaning they have equal and similar opportunities. This can be further illustrated by Rowe v United Kingdom[23], when ECtHR held an accused must know the evidence, be allowed to challenge the same and rebut it with counter-evidence. Putting it in simple words, defendants should be afforded an opportunity to contest evidence to ensure both the parties are treated equally.
The first portion of a fair hearing is that of public hearing. Even though public hearings are an essential element of a fair trial, nevertheless Article-6 provides exceptional circumstances under which a public hearing may be compromised[24]. The ECtHR in Campbell v United Kingdom[25] demonstrated that non-public proceedings for prison-disciplinary could be justifiable. Be that as it may, the rising numbers of private/secret-trials being held under the umbrella of interest of justice have become a major concern as has been stated[26] by Lord Phillips[27].
Disclosure, also a part of a fair hearing, requires the accused has knowledge of all evidence. Nevertheless, under certain circumstances evidence may be withheld to secure rights of another person or for upholding Public Interest[28]. The Strasbourg Court looks into disclosure in accordance with the equivalence of the parties, ensuring that the parties have had equal opportunities and neither party’s interest have been violated, but the protection given will be stringently examined. House of Lords[29] shares a similar viewpoint, by permitting special counsel to prevent a violation of the defendant’s interest when the opposing counsel argued for secrecy of delicate evidence.
To lead a fair trial, the doctrine of admissibility of evidence is pertinent. The ECtHR deems it the duty of domestic courts to reflect on the admissibility aspect. In doing so the courts need to consider whether the evidence may have been obtained through illegal means, for e.g. by breaching another Convention Right, hence certain factors need to be addressed[30] by domestic courts. A great cause of concern arisen in the legal arena is that of the evidence obtained from breach of Article 3[31] of the convention. Even though ECtHR is clear in terms of evidence attained by torture, being inadmissible[32] nonetheless it remains vague in regards to evidence obtained from “mere” inhumane or degrading treatment[33]
Another one of the opportunities guaranteed to the parties, under a fair trial, is that they be allowed to conduct cross-examination of witnesses. Furthermore a hearsay statement, presented by a witness, may be permitted in a court, nonetheless with stringent reservation. However, UK Supreme Court has held that the domestic protocol[34] is compliant with the requirements of Article 6.
Another basic elements of a fair trial include legal representation, reasoned on the principle that if the defendant cannot afford a legal counsel, legal-aid should be provided for the preference of justice. The Strasbourg-Court has given a number of considerations[35] to draw a conclusion as to what factors must be at play for allowing legal aid[36] only in criminal cases. Nevertheless in exceptional circumstances legal assistance may be justifiably denied[37], however, generally failing to provide legal aid is considered lethal to the fairness element[38]. Even if, under valid circumstances, the defendant is deprived of the right it is vital that such decision be proportionate and not in any condition should it prejudice other rights, finding origin in Article 6. However, the ECtHR has gone out of the way to clarify that the legal representation afforded to the defendant should be practical, emphasizing that it should encompass all morals as in a client-lawyer relationship[39]
Article-6 expressly mentions the right of being presumed innocent[40] unless proven otherwise. The main concern is regarding jury hearings, as judiciary is considered as impartial and professional but jurors are considered vulnerable to external influence; this can also be related to the rising concern vis-à-vis the advance age of social-media and the Internet.
Another relevant portion of a fair trial is that of a reasoned verdict. Adjudicators are under a responsibility to provide a reasoned verdict, however juries are rightfully exempted from this. Even the Strasbourg Court has recognised, in Taxquet v Belgium[41], that verdicts of Juries need not be accompanied with a reason as the same are understandable by the members of general public, and the same does not amount to a violation of fairness. Subsequently, placing higher burden on the administrative work, of the judge, in giving guidelines to jurors.
The Right to a Fair Trial is central to all other rights contained in ECHR; since it secures one’s means for approaching a bench of adjudicators to uphold their constitutional rights. As seen, from analyzing the scope of the elements of Article-6, it can adequately cater to all the needs of litigants. It is a dogmatic view that right to a fair trial is a natural right, protecting the fundamental rights of individuals and it is the operation and existence of such natural rights that motivate the common man to have trust in the judicial system. A fair trial encompasses not only ordinary concepts such as that of legal representation, but keeps in alive other essential principles[42]
Right to a fair trial goes hand in hand with the modern adversarial method of litigation; two sides of the same coin. The adversarial system cannot continue fluently without a concept of a fair trial as in Article-6; it is essential to today’s legal arena to guarantee such liberties and reservations. Not only is the operation of Article-6 essential for smooth court proceedings but also of such importance it can be linked to the sustainability of rule of law.
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