What is a fair trial according to the European Court on Human Rights?

Introduction

The question troubling South Africa recently has been ‘what constitutes a fair trial’? And much narrower, ‘what constitutes a trial’? This brief considers this question through the jurisprudence of the European Court on Human Rights (ECHR) in terms of the European Convention on Human Rights (ECHR).

Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted in 1950 provides that:

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.
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.

To be heard by a competent and impartial tribunal/ court

This entitles an accused to a fair and public hearing within a reasonable time period, to prompt information on the trial in a language which he understands, to confront witnesses testifying on behalf of the prosecution, to order the appearance of witnesses to testify on his behalf, and to legal assistance. In this instance, the general principle is that a litigant must be given a chance to have a charge or case made out that they have a chance to reply to. The tribunal/court must be impartial and competent to hear the matter.

The criminal and civil approaches to the right to fair trial

The European Court bifurcates its approach into the (a) criminal,[1] and (b) civil limb. In the former, the general principle lies in fairness, and this is assessed in the circumstances of the case.[2] While there are procedural requirements, the violation of one aspect may not automatically lead to the conclusion that there was no fair trial.[3]

In this connection, where a procedural defect has been identified, it falls to the domestic courts in the first place to carry out the assessment as to whether that procedural shortcoming has been remedied in the course of the ensuing proceedings, the lack of an assessment to that effect in itself being prima facie incompatible with the requirements of a fair trial according to Article 6 of the Convention (Mehmet Zeki Çelebi v. Turkey, § 51). Moreover, the cumulative effect of various procedural defects may lead to a violation of Article 6 even if each defect, taken alone, would not have convinced the Court that the proceedings were unfair (Mirilashvili v. Russia, § 165).[4]

The fairness of the trial is assessed in its entirety taking into account the public interest and the right of the accused to a defence. The requirements of a fair trial are stricter under the criminal limb than they are under the civil limb. In the civil limb the court will require appropriate institutional factors, and general independence and impartiality. Then the court must use procedural treatment of the case that ensures fairness.

The content of the right ensures that the parties have a right to present a matter to (a) a judge, for (b) competent judicial review and (c) present their arguments that they think are necessary to the determination of the hearing. The court must (d) give due weight and assess both arguments in making its determination.[5] According to Golder v United Kingdom,

‘it is a matter of principle that in the determination of his “civil rights and obligations” – as defined in the case-law of the Strasbourg Court – everyone is entitled to a fair hearing by a tribunal. To this are added the guarantees laid down by Article 6 § 1 as regards both the organisation and the composition of the court, and the conduct of the proceedings. In sum, the whole makes up the right to a fair hearing.’[6]

Waiver of the guarantee to fair trial

The European Court has held that Article 6 does not prevent an accused ‘from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance (Pfeifer and Plankl v. Austria,[7]). Hemi v Italy held that the accused can only waive his rights if he/she could reasonably foresee the consequences of his conduct.[8] Thus, for instance, the Court has held that the applicants who voluntarily and in full knowledge accepted to be tried in summary proceedings, which entailed certain advantages for the defence, unequivocally waived their right to the guarantees of Article 6 which were excluded in the proceedings in question (questioning of witnesses at the appeal stage of the proceedings) (Di Martino and Molinari v. Italy, para 33-40).

Conclusion

In sum, a charge will be brought against the accused and the accused will be given a chance to reply thereto and have a right to representation. The accused and the state will have the matter heard by a competent tribunal which will make a final decision/ judgment. This will constitute a trial. The fairness thereof will be assessed as indicated above.

Mihloti Basil Sherinda
Legal Researcher
mihloti@hsf.org.za

[1] https://www.echr.coe.int/documents/guide_art_6_criminal_eng.pdf