The right to a fair trial in civil cases

• Author: Christos Rozakis
• Position: Judge of the European Court of Human Rights
• Pages: 96-106

THE RIGHT TO A FAIR TRIAL IN CIVIL CASES

CHRISTOS ROZAKIS*

I. INTRODUCTION

The right to a fair trial is enshrined in Article 6 of the European

Convention on Human Rights and it represents one of the most

fundamental guarantees for the respect of democracy and the rule of

law on the European continent. Indeed, the concept of fair trial is a

basic component of the wider notion of the separation of powers: it

attributes to the judiciary - one of the three powers of the State - its

distinct character from the other two, by determining which qualities

-independence and impartiality - and which procedures make it an

element of protection and security for those who are under the

omnipotent jurisdiction of the State. The obligations, therefore, for

the State under this Article go far beyond the protection afforded by

some other articles of the Convention, as they are positive

obligations by their nature, and hence require from the State and its

authorities not only a mereabstention from acts which may be

detrimental to an individual, but also, and above all, the taking of

initiatives to ensure good administration of justice within the State.

In sum, Article 6, while it encompasses the protection of individuals

before the courts, at the same time identifies the basic features of the

judiciarywhich distinguish it from the other two State powers.

The right to a fair trial refers both to criminal and civil cases and

the corresponding proceedings. The first paragraph of Article 6

applies equally to the two categories of cases, while the two

remaining paragraphs 2 and 3 are designed to apply, by and large, to

criminal proceedings. We say “by and large” because, although the

intention of the legislator was to limit the applicability of these two

paragraphs to penal cases, the Strasbourg organs have widely

construed the obligations appearing on paragraphs 2 and 3, which

has led to their application by analogy in civil cases, whenever

feasible.1

96 [4:2Judicial Studies Institute Journal

*Judge of the European Courtof Human Rights.

1This observation concerns morepara. 3, than para. 2 of Article 6.