Right to a fair trial in criminal matters under article 6 E.C.H.R.

• Author: Paul Mahoney
• Position: Registrar of the European Court of Human Rights
• Pages: 107-129

RIGHT TO A FAIR TRIAL IN CRIMINAL MATTERS

UNDER ARTICLE 6 E.C.H.R.

PAUL MAHONEY*

I. INTRODUCTION

Not only is Article 6, which guarantees the right to a fair trial in

civil and criminal matters, one of the few provisions in the European

Convention on Human Rights (“ECHR”) which goes into some

detail as to the scope of the safeguard afforded (in particular, the

rights of the defence in criminal proceedings), but it is the subject of

an exceptionally rich case-law. One could almost draft a code of

criminal procedure on the basis of the E.C.H.R. case-law. The text

of Article 6 reads:

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,wherethe 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 wherepublicity 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:

2004] 107Right To A Fair Trial In Criminal Matters Under

Article 6 E.C.H.R.

*Registrar of the European Court of Human Rights. Expanded text of a presentation made

at the National Judicial Conference organised by the Judicial Studies Institute in Dublin on 10-

11 November 2001. Any views expressed arepersonal.

(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.”

For a national judge in a country where the ECHR is part of

domestic law,Article 6 under its criminal head is most likely to come

into the picture:

• during the trial and its preparatory proceedings, whenever a

procedural motion is made (to hear witnesses, to exclude

evidence, for an adjournment, and so on) or,generally,

whenever a procedural issue arises;

• on appeal when the appeal court is called on to rule on alleged

procedural deficiencies at first instance.

The following descriptive survey is intended to give a brief

indication of the main principles, together with a few illustrative

examples of the voluminous case-law under the “criminal” limb of

Article 6.

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