Article 6.1 of the Convention – Right to a fair trial
“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 interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special. circumstances where publicity would prejudice the interests of justice. …”
Article 6.1 deals with both civil and criminal matters. Articles 6.2 and 6.3 deal with specific aspects of criminal proceedings.
Civil Rights and Obligations
Article 6 applies only to the determination of civil rights and obligations. The right must be civil in nature. This has been interpreted to exclude certain areas of public law from the scope of the Article. Disputes in civil litigation between private parties are covered. All pre-trial stages are covered.
Disputes cover all proceedings the result of which is decisive for the rights and obligations. The civil rights and obligations must be the objective or one of the objectives of the dispute. The decision must be decisive for the purpose of such right.
The concept of “civil rights and obligations” cannot be interpreted solely by reference to the respondent State’s domestic law; it is an “autonomous” concept deriving from the Convention.It is necessary to look beyond the appearances and the language used and concentrate on the realities of the situation according to the circumstances of each case
Grzęda v. Poland , 2022 indicated that the applicability of Article 6.1 in civil matters firstly depends on the existence of a “dispute” (in French, “contestation”). Secondly, the dispute must relate to a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is protected under the Convention.
The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. Lastly,the result of the proceedings must be directly decisive for the “civil” right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6.1 into play.
Benthem v Netherlands The term should not be construed too technically and should be given a substantive rather than a formal meaning. The dispute related not only to actual existence of a right but also to its scope or the manner in which it may be exercised. It may concern both questions of fact and questions of law. The dispute must be genuine and of a serious nature.
Fayed v involved UK a departmental enquiry into a takeover which was fact-finding in nature although it might be used in subsequent public authority actions, prosecutions or regulatory proceedings. Because the matter was investigative and not determinative of rights, Article 6.1 did not apply.
The dispute may relate not only to the actual existence of a right but also to its scope or the manner in which it is to be exercised (Benthem v. the Netherlands, 1985,.32; Cipolletta v. Italy, 2018,.31). For example, the fact that the respondent State does not actually contest the existence of a right for torture victims to obtain compensation, but rather its extraterritorial application, does not mean that there cannot be a “dispute” over that right for the purposes of the Convention (Naït-Liman v. Switzerland [GC], 2018,.107). The dispute may also concern matters of fact.
The Court has accepted that associations also qualify for protection under Article 6.1 if they seek recognition of specific rights and interests of their members (Gorraiz Lizarraga and Others v. Spain, 2004,.45) or even of particular rights to which they have a claim as legal persons (such as the right of the “public” to information and to take part in decisions regarding the environment (Collectif national d’information et d’opposition à l’usine Melox – Collectif Stop Melox and Mox v. France (dec.), 2006), or when the association’s action cannot be regarded as an actio popularis (L’Érablière A.S.B.L. v. Belgium, 2009).
Role of European Court
It is primarily for the national authorities, in particular the courts, to resolve problems of interpretation of domestic legislation. The Court’s role is limited to verifying whether the effects of such interpretation are compatible with the Convention. That being so, save in the event of evident arbitrariness, it is not for the Court to question the interpretation of the domestic law by the national courts (Naït-Liman v. Switzerland [GC], 2018,.116).
hus, where the superior national courts have analysed the precise nature of the impugned restriction in a comprehensive and convincing manner, on the basis of the relevant Convention case-law and principles drawn therefrom, the Court would need strong reasons to depart from the conclusion reached by those courts by substituting its own views for theirs on a question of interpretation of domestic law and by finding, contrary to their view, that there was arguably a right recognised by domestic law (Károly Nagy v. Hungary [GC], 2017, §§ 60 and 62; X and Others v. Russia, 2020,.48).
Right v Expectation
In some cases, national law, while not recognising that an individual has a subjective right, does confer the right to a procedure for examination of his or her claim, involving matters such as ruling whether a decision was arbitrary or ultra vires or whether there were procedural irregularities (Van Marle and Others v. the Netherlands, 1986,.35).
This is the case regarding certain decisions where the authorities have a purely discretionary power to grant or refuse an advantage or privilege, with the law conferring on the person concerned the right to apply to the courts, which may set the decision aside if they find that it was unlawful. In such a case Article 6.1 is applicable, on condition that the advantage or privilege, once granted, gives rise to a civil right (Regner v. the Czech Republic [GC], 2017,
However, Article 6 is not applicable where the domestic legislation, without conferring a right, grants a certain advantage which it is not possible to have recognised in the courts (Boulois v. Luxembourg [GC], 2012, §§ 96 and 101). The same situation arises where a person’s rights under domestic legislation are limited to a mere hope of being granted a right, with the actual grant of that right depending on an entirely discretionary and unreasoned decision by the authorities (Roche v. the United Kingdom [GC], 2005.
Substantive v Procedural
The Court has pointed out that whether a person has an actionable domestic claim may depend not only on the content, properly speaking, of the relevant civil right as defined in national law but also on the existence of procedural bars preventing or limiting the possibilities of bringing potential claims to court (Fayed v. the United Kingdom, 1994,.65). In that event, the domestic legislation recognises that a person has a substantive right even though, for whatever reason, there is no legal means of asserting or enforcing the right through the courts.
In cases of this kind, Article 6.1 may apply (Al-Adsani v. the United Kingdom [GC], 2001,.47; McElhinney v. Ireland [GC], 2001,.25). However, the Convention institutions may not create through the interpretation of Article 6.1 a substantive civil right which has no legal basis in the State concerned.
Applying the distinction between substantive limitations and procedural bars in the light of these criteria, the Court has, for example, recognised as falling under Article 6.1 civil actions for negligence against the police (Osman v. the United Kingdom, 1998) or against local authorities (Z and Others v. the United Kingdom [GC], 2001) and has considered whether a particular limitation (exemption from prosecution or non-liability) was proportionate from the standpoint of Article 6.1. Immunity is to be seen here not as qualifying a substantive right but as a procedural bar to the national courts’ power to determine that right (Al-Adsani v. the United Kingdom [GC], 2001,.48; Cudak v. Lithuania [GC], 2010,.57).
Engel v Nederland considered whether the Armed Force’s disciplinary actions were criminal for the purpose of the guarantee. This is determined by reference to the national classification of the nature of the matter concerned and the prospect penalty. Because penalties were relatively short periods of detention, and the rules applied to a relatively small category it was not deemed criminal in nature.
Article 6 is applicable to disciplinary proceedings before professional bodies where the right to practise a profession is directly at stake (Reczkowicz v. Poland, 2021, §§ 183-185 and the case-law references cited in relation to judges and practising lawyers; Le Compte, Van Leuven and De Meyere v. Belgium (doctors); Philis v. Greece (no. 2), 1981,.45 (engineer); Peleki v. Greece, 2020,.39, concerning a notary; compare and contrast with Ali Rıza and Others v. Turkey, 2020, §§ 155 and 159- 160, concerning sports disputes).
The applicability of Article 6 to disciplinary proceedings is determined on the basis of the sanctions which the individual risks incurring as a result of the alleged offence (Marušić v. Croatia (dec.), 2017).
In Ezeh & Connors v UK prisons disciplinary rules relating to attempts to kill and commit assault carrying a significant prospective penalty were held to be criminal in nature.
Disciplinary proceedings that do not directly interfere with the right to continue to practise a profession, since such an outcome requires the institution of separate proceedings, are likewise not “decisive” for the purposes of Article 6 (Marušić v. Croatia (dec.), 2017
Matyjek v Poland concerned proceedings sought to clarify prior involvement in security services during the Communist era. It carried disqualification from public office for a long period as a sanction for false statements. The proceedings were held to be criminal in nature.
In Ozturk v Germany, quasi-civil proceedings for motoring offences which were intended not to be criminal in nature, were classified as such for the purpose of the Convention.
The Article 6 rights are applicable from the official notification given to an individual by the competent authority, of an allegation that he has committed an offence. The rights are applicable throughout the whole process through sentencing and appeal. This is the case even when the appeal is dealing only with issues of legality; Delcourt v Belgium.
In T & V v the UK, the notorious Jamie Bolger case, the court confirmed that proceedings against 11-year-olds carrying detention at her Majesty’s pleasure, but not a formal sentence, was criminal in nature. Because the Secretary of State fixed the length of detention, Article 6 was breached as it was not done by an independent tribunal.
The Article no longer applies when proceedings have been finally terminated, for example on the occasion of release on parole or probation.
In the early case of Ringeisen v Austria the court ruled that disputes between private persons and public authorities may be covered and that it was not limited to dispute between private persons only. Pudas v Sweden concerned the revocation of a taxi licence for public policy rationalisation reasons. Although it was based on public policy its effect on the applicant’s business led the court to hold that matters of civil rights and obligations were involved.
The courts have a range of
- business and professional licensing matters
- childcare proceedings and
- access to information
to be civil in nature.
Recruitment, in the context of access to employment, constitutes in principle a privilege that can be granted at the relevant authority’s discretion and cannot be legally enforced. For the purposes of Article 6, this question should be distinguished from the continuation of an employment relationship or the conditions in which it is exercised.
While access to employment and to the functions performed may constitute in principle a privilege that cannot be legally enforced, this is not the case regarding the continuation of an employment relationship or the conditions for its enjoyment (Regner v. the Czech Republic [GC], 2017,.117).
The Court has held that Article 6.1 is applicable to disputes concerning social matters, including proceedings relating to an employee’s dismissal by a private firm (Buchholz v. Germany, 1981), proceedings concerning social-security benefits (Feldbrugge v. the Netherlands, 1986), even on a non-contributory basis (Salesi v. Italy, 1993), welfare assistance and accommodation (Fazia Ali v. the United Kingdom, 2015 §§ 58-59), and also proceedings concerning compulsory social-security contributions (Schouten and Meldrum v. the Netherlands, 1994). (For the challenging by an employer of the finding that an employee’s illness was occupation-related, see Eternit v. France (dec.), 2012,
In these cases the Court took the view that the private-law aspects predominated over the public-law ones. In addition, it has held that there were similarities between entitlement to a welfare allowance and entitlement to receive compensation for Nazi persecution from a private-law foundation (Woś v. Poland, 2006,.76).
Tax & Social Insurance
Charalambos v France confirmed that matters of taxation liability were outside Article 6. Opinions have been offered to the contrary.
imilarly excluded are summary injunction proceedings concerning customs duties or charges (Emesa Sugar N.V. v. the Netherlands (dec.), 2005).
Feldbrugge v Nederland held certain issues under the social insurance system to be within the scope of civil matters, despite its public nature. It created rights of a personal and economic nature and was closely connected to employment. Similar conclusions have been reached in relation to social welfare type occupational pensions.
In Salesi v Italy the court held that non-contributory social assistance type payments were civil in nature and were accordingly within the scope of article 6.1.
In Maaouia v France has confirmed that the rights of alien, asylum and deportation are not civil in nature for this purpose. A separate Protocol covers the deportation of nonnationals.
Article 6 does not apply to entry, residence and removal of aliens, in relation to proceedings concerning the granting of political asylum or deportation (application for an order quashing a deportation order: and an action in damages by an asylum-seeker on account of the refusal to grant asylum: see Panjeheighalehei v. Denmark (dec.), 2009), despite the possibly serious implications for private or family life or employment prospects. This inapplicability extends to the inclusion of an alien in the Schengen Information System (Dalea v. France (dec.), 2010).
The right to hold a passport and the right to nationality are not civil rights for the purposes of Article 6 (Smirnov v. Russia (dec.), 2006). However, a foreigner’s right to apply for a work permit may come under Article 6, both for the employer and the employee, even if, under domestic law, the employee has no locus standi to apply for it, provided that what is involved is simply a procedural bar that does not affect the substance of the right (Jurisic and Collegium Mehrerau v. Austria, 2006, §§ 54-62).
A foreigner’s right to apply for a work permit may come under Article 6, both for the employer and the employee, even if, under domestic law, the employee has no standing to apply for it, provided that what is involved is simply a procedural bar that does not affect the substance of the right ; Jurisic and Collegium Mehrerau v. Austria.
Disputes concerning public servants fall in principle within the scope of Article 6.1.In Pellegrin v France, the court clarified the application of Article 6.1 to the terms of employment of public servants. The mere fact that the applicant is in a sector or department which participates in the exercise of power conferred by public law is not in itself decisive, but there can be in principle no justification for the exclusion of the guarantees of article 6.1 from ordinary labour disputes such as those relating to salaries and allowances or similar entitlements on the basis of the special nature of the relationship between the particular civil servant at the state in question.
There will be a presumption that Article 6 applies. It will be for the respondent government to demonstrate the civil servant applicant does not have a right of access to court under national law and second that the exclusion of the right under Article 6 is justified.
In its judgment in Vilho Eskelinen and Others v. Finland [GC], 2007, the Court clarified the scope of the “civil” concept and developed new criteria for the applicability of Article 6.1 to employment disputes concerning civil servants Thus, there can in principle be no justification for the exclusion from the guarantees of Article 6 of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of the relationship between the particular civil servant and the State in question (for the particular case of mixed systems, combining the rules of labour law applicable in the private sector with certain specific rules applicable to the civil service.
The principle is now that there will be a presumption that Article 6 applies, and it will be for the respondent Government to demonstrate, firstly, that a civil-servant applicant does not have a right of access to a court under national law and, secondly, that the exclusion of the rights under Article 6 for the civil servant is justified (Vilho Eskelinen and Others v. Finland [GC], 2007,.62).