What is the right to a fair trial?
The administration of the justice system may lead to serious consequences for individuals in terms of loss of liberty or an adverse ruling in a dispute presented to a court (and as a result loss of (perceived) rights). Without exact compliance with due process, the rule of law may be impaired and as such the foundations for compliance with human rights law. Clear definition of the terms used in the various articles which deal with fair trial and administration of justice is called for. What is the meaning of ‘civil rights and obligations’ (ECHR Article 6-1)? What is ‘a suit at law’ ( ICCPR Article 14)? What is a criminal charge? What constitutes a public hearing? What is a tribunal? In the excerpts below, elements of these concepts are discussed.
There are a number of notions related to fair trial which are not clearly defined in the text of the human rights treaties. The supervisory mechanisms have gradually defined these concepts, especially the European Court of Human Rights where, during the last few years, some 40% of the case-law (700 - 800 cases per year) has dealt with fair trial issues.
In the following case, the Court elaborated on various notions related to fair trial, such as the concept of a dispute (para. 94) and the concept of an independent tribunal (para. 95-97). In this case, the applicant was prosecuted and detained on remand because of dealings with land, fraud and fraudulent bankruptcy.
Ringeisen v. Austria
Application No. 2614/65
Judgement of 16 July 1971
Keywords: fair trial - reasonable time &ndash tribunal &ndash dispute - rights and obligations
AS TO THE LAW
81. The Court is called upon to decide the following three points:
I. Was Ringeisen the victim of a violation of Article 6, paragraph (1) (art. 6-1), of the Convention in the proceedings he introduced before the competent authorities for approval of a transfer of real property consisting of farmland?
II. Did the detention of Ringeisen exceed the limits of a reasonable time in violation of Article 5, paragraph (3) (art. 5-3)?
III. Did the duration of the criminal proceedings against Ringeisen exceed the limits of a reasonable time as laid down in Article 6, paragraph (1) (art. 6-1)?
I. As to the question whether Ringeisen was the victim of a violation of Article 6, paragraph (1) (art. 6-1), in the proceedings he introduced to obtain approval of a transfer of real property consisting of farmland
82. Against this complaint, the Government raised a plea of inadmissibility on the grounds that on this point the application did not satisfy the conditions of Article 26 (art. 26). The Commission has contested the Court’s jurisdiction to rule on this submission as it considers that it is the only body empowered by the Convention to decide on the admissibility of applications.
In addition, the Government contended that Article 6, paragraph (1) (art. 6-1), invoked by the applicant was inapplicable as this was not a case of the “determination of ? civil rights and obligations” (“contestations sur (des) droits et obligations de caractère civil”). The Commission expressed the same opinion by a majority and hence did not find it necessary to examine whether the proceedings put in issue were in conformity with the requirements of Article 6, paragraph (1) (art. 6-1); a minority of five members expressed the view that the case did in fact involve the determination of civil rights.
83. Thus, within the framework of this complaint, the Court is or may be called upon to decide four points as follows:
(a) whether it has jurisdiction to deal with the admissibility;
(b) if so, the admissibility of the complaint under Article 26;
(c) if the reply to the second question is in the affirmative, the applicability of Article 6-1, to the proceedings in question;
(d) if the reply to the third question is in the affirmative, the question whether this complaint is well-founded.
(a) As to jurisdiction
84. For the reasons stated in paragraphs 47 to 51 of the judgement of the plenary Court of 18th June 1971 in the De Wilde, Ooms and Versyp cases, the Court cannot accept the principal submission of the Commission; it therefore rules that it has jurisdiction.
(b) As to the substance of the submission of inadmissibility on the ground of non-exhaustion of domestic remedies
(c) As to the question whether the present complaint involves the determination of civil rights and obligations
94. For Article 6, paragraph (1) (art. 6-1), to be applicable to a case (“contestation”) it is not necessary that both parties to the proceedings should be private persons, which is the view of the majority of the Commission and of the Government. The wording of Article 6, paragraph (1) (art. 6-1), is far wider; the French expression “contestations sur (des) droits et obligations de caractère civil” covers all proceedings the result of which is decisive for private rights and obligations. The English text “determination of ? civil rights and obligations”, confirms this interpretation.
The character of the legislation which governs how the matter is to be determined (civil, commercial, administrative law, etc.) and that of the authority which is invested with jurisdiction in the matter (ordinary court, administrative body, etc.) are therefore of little consequence.
In the present case, when Ringeisen purchased property from the Roth couple, he had a right to have the contract for sale which they had made with him approved if he fulfilled, as he claimed to do, the conditions laid down in the Act. Although it was applying rules of administrative law, the Regional Commission’s decision was to be decisive for the relations in civil law (“de caractère civil”) between Ringeisen and the Roth couple. This is enough to make it necessary for the Court to decide whether or not the proceedings in this case complied with the requirements of Article 6, paragraph (1) (art. 6-1), of the Convention.
(d) As to whether the complaint that Article 6, paragraph (1), was not observed is well-founded
95. The Court has not found any facts to prove that Ringeisen was not given a “fair hearing” of his case. Besides, the Court observes that the Regional Commission is a “tribunal” within the meaning of Article 6, paragraph (1) (art. 6-1), of the Convention as it is independent of the executive and also of the parties, its members are appointed for a term of five years and the proceedings before it afford the necessary guarantees (see, mutatis mutandis, the Neumeister judgement of 27th June 1968, Series A, p. 44, paragraph 24, and the De Wilde, Ooms and Versyp judgement of 18th June 1971, paragraph 78).
96. The applicant, however, accused six members of the Regional Commission of bias; when these complaints were brought before it, the Constitutional Court did not find it necessary to examine their substance for the reason that, as stated in its judgement of 27th September 1965, the question of bias had no bearing on the competence of the Regional Commission which was the only question submitted to its supervision (paragraph 23 above).
97. It is not the function of the European Court to pronounce itself on the interpretation of Austrian law on which the said judgement is based or to express an opinion on the manner in which it was substantiated; on the other hand, it is the Court’s duty to examine the grounds relied upon by Ringeisen and to determine whether or not the Regional Commission respected the rule of impartiality laid down in Article 6, paragraph (1) .
The Court finds that even if Ringeisen’s assertions were in fact true they would not support the conclusion that there was bias on the part of the Regional Commission. In the case of such a board with mixed membership comprising, under the presidency of a judge, civil servants and representatives of interested bodies, the complaint made against one member for the single reason that he sat as nominee of the Upper Austrian Chamber of Agriculture cannot be said to bear out a charge of bias. The same holds true for the complaint made against a member who was alleged by Ringeisen to have made certain statements the precise tenor of which the Regional Commission was, moreover, at pains to restore (paragraph 22 above). As to the twofold fact that the president had represented the Regional Commission before the Constitutional Court in 1964 and that another member had been heard as a witness, this is obviously immaterial. Nor, finally, can any grounds of legitimate suspicion be found in the fact that two other members had participated in the first decision of the Regional Commission, for it cannot be stated as a general rule resulting from the obligation to be impartial that a superior court which sets aside an administrative or judicial decision is bound to send the case back to a different jurisdictional authority or to a differently composed branch of that authority.
98. Article 6, paragraph (1) (art. 6-1), is not limited, however, to ensuring that in every determination of civil rights and obligations there must be a fair hearing within a reasonable time; it also requires, at least as a general rule, that the case be heard and the judgement pronounced in public.
The Court could have verified, even proprio motu - and subject to the reopening of the hearings on this point - whether the District and Regional Commissions had complied with this rule or whether they were entitled to depart from it. The Court has not undertaken this examination because Austria’s ratification of the Convention was made subject to the following reservation:”?
The provisions of Article 6 (art. 6) of the Convention shall be so applied that there shall be no prejudice to the principles governing public court hearings (im gerichtlichen Verfahren) laid down in Article 90 of the 1929 version of the Federal Constitution Law. ?”
The said Article 90 is worded as follows:
“Hearings in civil and criminal cases (in Zivil- und Strafrechtssachen) by the trial court shall be oral and public. Exceptions may be prescribed by law. ?”
This reservation does not refer expressly to administrative proceedings but only to civil and criminal cases, that is, no doubt, the cases dealt with by the civil or criminal courts. Yet it must be accepted that the reservation covers a fortiori proceedings before administrative authorities where their subject matter is the determination of civil rights and where, therefore, the said authorities are considered to be tribunals within the meaning of Article 6, paragraph (1) (art. 6-1). This is the case of the proceedings commenced by Ringeisen’s request for approval on 30th March 1962.
99. For these reasons, the Court reaches the conclusion that there was no violation of Article 6, paragraph (1) (art. 6-1), in the proceedings relating to that request.
[judgement continues discussion on Article 5, after which conclusion]
The notion of ‘civil rights and obligations’. The Ringeisen case contains some of the notions related to the definition of a fair trial.
The notion of ‘a civil right’ is important in this context. In König v. The Federal Republic of Germany (Application No. 6232/73, Judgement of 28 June 1978), the European Court elaborated upon ‘civil rights and obligations’ and gave its opinion regarding autonomous interpretation of concepts included in Article 6 ECHR:
88. Both the Commission and the Government agree that the concept of “civil rights and obligations” cannot be interpreted solely by reference to the domestic law of the respondent State.
The problem of the “autonomy” of the meaning of the expressions used in the Convention, compared with their meaning in domestic law, has already been raised before the Court on several occasions. Thus, it has decided that the word “charge” appearing in Article 6 para. 1(art. 6-1) has to be understood “within the meaning of the Convention” (Neumeister judgement of 27 June 1968, Series A no. 8, p. 41, para. 18, as compared with the second sub-paragraph on p. 28 and the first sub-paragraph on p. 35; see also Wemhoff judgement of 27 June 1968, Series A no. 7, pp. 26-27, para. 19; Engel and others judgement of 8 June 1976, Series A no. 22, p. 34 para. 81). The Court has also recognised, in the context of the case of Engel and others, the “autonomy” of the concept of “criminal” within the meaning of Article 6 para. 1 (art. 6-1) (above-mentioned Engel and others judgement, p. 34, para. 81). Again, the Court has already acknowledged, implicitly, that the concept of “civil rights and obligations” is autonomous (above-mentioned Ringeisen judgement, p. 39, para. 94). The Court confirms this case-law on the present occasion. Hence, it considers that the same principle of autonomy applies to the concept in question; any other solution might lead to results incompatible with the object and purpose of the Convention (see, mutatis mutandis, the above-mentioned Engel and others judgement, p. 34,para. 81).
89. Whilst the Court thus concludes that the concept of “civil rights and obligations” is autonomous, it nevertheless does not consider that, in this context, the legislation of the State concerned is without importance. Whether or not a right is to be regarded as civil within the meaning of this expression in the Convention must be determined by reference to the substantive content and effects of the right - and not its legal classification - under the domestic law of the State concerned. In the exercise of its supervisory functions, the Court must also take account of the object and purpose of the Convention and of the national legal systems of the other Contracting States (see, mutatis mutandis, the above-mentioned Engel and others judgement, p. 35,para. 82).
90. The Government submit that Article 6 para. 1 (art. 6-1) covers private-law disputes in the traditional sense, that is disputes between individuals or between an individual and the State to the extent that the latter had been acting as a private person, subject to private law; amongst other things, disputes between an individual and the State acting in its sovereign capacity would be excluded from the ambit of that Article (art. 6-1).
As regards the field of application of Article 6 para. 1 (art. 6-1), the Court held in its Ringeisen judgement of 16 July 1971 that “for Article 6 para. 1 (art. 6-1) to be applicable to a case (‘contestation’) it is not necessary that both parties to the proceedings should be private persons ?. The wording of Article 6 para. 1 (art. 6-1) is far wider; the French expression ‘contestations sur (des) droits et obligations de caractère civil’ covers all proceedings the result of which is decisive for private rights and obligations. The English text, ‘determination of ? civil rights and obligations’, confirms this interpretation. The character of the legislation which governs how the matter is to be determined ? and that of the authority which is invested with jurisdiction in the matter ? are therefore of little consequence” (Series A no. 13, p. 39, para. 94).
If the case concerns a dispute between an individual and a public authority, whether the latter had acted as a private person or in its sovereign capacity is therefore not conclusive. Accordingly, in ascertaining whether a case (“contestation”) concerns the determination of a civil right, only the character of the right at issue is relevant.
At first sight, one is inclined to accept that ‘civil rights and obligations’ is meant to apply to private law matters (that is, between private citizens). In practice, the distinction between private and public law is unclear in most European legal systems. The only clear criterion under the Article 6 case-law is the existence of a dispute between parties, who can either be individuals or the individual and the state. A number of cases have raised claims relating to other rights guaranteed under the European Convention as well as those guaranteed under Article 6. Many have concerned administration proceedings affecting contracts for the sale of land, (e.g., Sramek v. Austria , Application No. 8790/79, Judgement of 22 October 1984), the expropriation of land (Sporrong and Lönroth, Application Nos. 7151/75, 7152/75, Judgement of 23 September 1982; Bodén v. Sweden , Application No. 10930/84, Judgement of 27 October 1987), the consolidation of agricultural land holdings ( Erkner and Hofauer v. Austria , Application No. 9616/81, Judgement of 23 April 1987) and similar issues. Others have related to compensation proceedings for a variety of claims, such as aircraft noise (Powell and Rayner v. The United Kingdom , Application No. 9310/81, Judgement of 21 February 1990), nationalisation of property (Lithgow et al. v. The United Kingdom , Application No. 9006/80, Judgement of 8 July 1986), or even unlawful arrest warrants ( Baraona v. Portugal , Application No. 10092/82, Judgement of 8 July 1987). Similarly, the Court has held Article 6 to be applicable to proceedings relating to the practice of professions (König v. The Federal Republic of Germany, Application No. 6232/73, Judgement of 28 June 1978 - withdrawal of rights to practise medicine and to run a medical clinic; Le Compte, Van Leuven and De Meyere v. Belgium , Application No. 6878/75, Judgement of 23 June 1981;Albert and Le Compte v. Belgium , Application No. 7299/75, Judgement of 10 February 1983, -disciplinary proceedings resulting in suspension of right to practise medicine;De Moor v. Belgium , Application No. 16997/90, Judgement of 23 June 1994 - right to be admitted to the bar on the fulfilment of formal conditions for admission established by statute) or the regulation of licences necessary to conduct certain economic activities (Benthem v. The Netherlands , Application No. 8848/80, Judgement of 23 October 1985 - licence to operate a gas supply installation; Pudas v. Sweden , Application No. 10426/83, Judgement of 27 October 1987 - revocation of a public transport licence; Tre Traktörer AB Judgement of 7 July 1989 - revocation of a licence to sell liquor). The Court has also held that the notion of a civil right under Article 6 encompasses certain types of social benefits (Schouten and Meldrum v. The Netherlands , Application No. 19005/91, Judgement of 9 December 1994 - obligation to make contributions to social security schemes;Schuler-Zgraggen v. Switzerland , Application No. 14518/89, Judgement of 24 June 1993 - entitlement to benefits under social security schemes; Feldbrugge v. The Netherlands , Application No. 8562/79, Judgement of 29 May 1986 - health insurance allowance including some claims relating to unjust dismissals; Obermeier v. Austria , Application No. 11761/85, Judgement of 28 June 1990 - dismissal of disabled person). The article also applies to decisions relating to the placing of children in public care and parental access to children already in care. (Olsson“case, Judgement of 24 March 1988; Olsson, Judgement of 27 November 1992; Ericksson case, Judgement of 22 June 1989). Finally, the Court has held that the notion of a civil right also encompasses the right to enjoy honour and a good reputation (Tolstoy Miloslavsky v. The United Kingdom , Application No. 18139/91, Judgement of 13 July 1995).
Although the scope of ‘civil rights and obligations’ under Article 6(1) is quite broad, there are nevertheless some issues that do not fall within its protection. Chief among these excluded issues are immigration and asylum proceedings. These matters are normally considered to be primarily of a public law character, unless an applicant can show that another right under the Convention is implicated.
The notion of ‘suit at law’. The ICCPR does not use the concept of a trial, a hearing or a judgement but speaks of a suit at law. In this connection the Human Rights Committee pointed out in General Comment 13 the following:
2. In general, the reports of States parties fail to recognise that article 14 applies not only to procedures for the determination of criminal charges against individuals but also to procedures to determine their rights and obligations in a suit at law. Laws and practices dealing with these matters vary widely from State to State. [?]
The term ‘determination’. Under Article 6(1) ECHR, the term ‘determination’ (of a civil right or obligation or of a criminal charge) has two principal elements. Firstly, it requires that some form of judicial review of any matter falling within these categories must be available and secondly, that the body reviewing the matter must be competent to issue a final binding decision.
Every state party to the Convention must guarantee to every individual within its jurisdiction the right to have civil and criminal matters affecting him or her adjudicated through a proceeding with the attributes of a judicial form of review (see e.g., Zumtobel v. Austria , Application No. 12235/86, Judgement of 21 September 1993). A number of cases have challenged administrative proceedings allegedly not fulfilling this requirement. The Court has found that either the bodies taking initial decisions must comply with the procedural requirements of Article 6 (1) or their decisions must be subject to subsequent control by a judicial body that does. In the Le Compte, Van Leuven and De Meyere case , Judgement of 23 June 1981 however, the Court did permit the state certain latitude in determining civil claims through administrative proceedings:
Demands of flexibility and efficiency, which are fully compatible with the protection of human rights, may justify the prior intervention of administrative or professional bodies and, a fortiori, of judicial bodies which do not satisfy the said requirements in every respect . . .. The Court clarified the limits of this position in the case of Albert and Le Compte, judgement of 10 February 1983:
[T]he Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of Article 6 (1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 (1).
In the Delcourt case, (Application No. 2689/65, Judgement of 17 January 1970), the European Court of Human Rights addressed the scope of ‘determination of a criminal charge’ in the context of proceedings at the Court of Cassation level:
[A] criminal charge is not really ‘determined’ as long as the verdict of acquittal or conviction has not become final. Criminal proceedings form an entity and must, in the ordinary way terminate in an enforceable decision. Proceedings in cassation are one special stage of the criminal proceedings and their consequences may prove decisive for the accused. It would therefore be hard to imagine that proceedings in cassation fall outside the scope of Article 6 (1).
Article 6 ECHR does not provide for a right to appeal a criminal conviction or sentence. However, such a right is guaranteed by Article 2 of Protocol No. 7 ECHR. Article 8(2)(g) ACHR , and Article 14(5) ICCPR do provide for a right to appeal. Nevertheless, it is clear from the case-law under Article 6 that where the right to appeal exists, it is only on the exhaustion of all levels of rights of appeal that a criminal charge will be considered to be ‘determined’.
The American Convention on Human Rights speaks in Article 8 of ‘[? the determination of his rights and obligations of a civil, labour, fiscal, or any other nature.’
The notion of‘‘criminal charge’. Another notion in connection with fair trial is the notion of a ‘criminal charge’. Again here the Court has in various cases emphasised that the classification under national law is not decisive. If the charge is classified as criminal in the domestic law of the respondent state, Article 6 will apply automatically to the proceedings. However, if the charge is not classified as criminal, this will not be decisive for the application of the fair trial guarantees in Articles 6(2) and 6(3). If this was the case, the contracting states could avoid the application of the fair trial guarantee by decriminalising or re-classifying criminal offences. The Court has used other elements when deciding whether there was a criminal charge or not in such cases. The first is the nature of the offence. The second is the nature and the severity of the penalty. Deprivation of liberty normally makes the case criminal and not disciplinary. In the case of fines, the severity of the fine is an important factor. A compensation for damage is likely to make the fine of an administrative or civil nature. But a punitive fine is likely to bring the case within a criminal sphere. As one can read in Article 6(2), if a case concerns a criminal charge, the person affected may claim a number of additional rights. In Engel v. The Netherlands (Application Nos. 5100/71, 5101/71, 5102/71, 5354/72, 5370/72, Judgement of 8 June 1976) the Court discussed in detail the issues related to criminal charge (para. 81-82):
81 [?] The Convention without any doubt allows the States, in the performance of their function as guardians of the public interest, to maintain or establish a distinction between criminal law and disciplinary law, and to draw the dividing line, but only subject to certain conditions. The Convention leaves the States free to designate as a criminal offence an act or omission not constituting the normal exercise of one of the rights that it protects. This is made especially clear by Article 7 (art. 7). Such a choice, which has the effect of rendering applicable Articles 6 and 7 (art. 6, art. 7), in principle escapes supervision by the Court. The converse choice, for its part, is subject to stricter rules. If the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, or to prosecute the author of a “mixed” offence on the disciplinary rather than on the criminal plane, the operation of the fundamental clauses of Articles 6 and 7 (art. 6, art. 7) would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the purpose and object of the Convention. The Court therefore has jurisdiction, under Article 6 (art. 6) and even without reference to Articles 17 and 18 (art. 17, art. 18), to satisfy itself that the disciplinary does not improperly encroach upon the criminal. In short, the “autonomy” of the concept of “criminal” operates, as it were, one way only.
82. Hence, the Court must specify, limiting itself to the sphere of military service, how it will determine whether a given “charge” vested by the State in question - as in the present case - with a disciplinary character nonetheless counts as “criminal” within the meaning of Article 6 (art. 6). In this connection, it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States.
The very nature of the offence is a factor of greater import. When a serviceman finds himself accused of an act or omission allegedly contravening a legal rule governing the operation of the armed forces, the State may in principle employ against him disciplinary law rather than criminal law. In this respect, the Court expresses its agreement with the Government.
However, supervision by the Court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the “criminal” sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so (see, mutatis mutandis, the De Wilde, Ooms and Versyp judgement of 18 June 1971, Series A no. 12, p. 36, last sub-paragraph, and p. 42 in fine).
In determining the applicability of Article 6 to the proceedings, the Court established three criteria for evaluating whether a given cause of action should be characterised as a ‘criminal charge’:
1. Whether the provisions defining the offence belong, according to the legal system of the respondent state, to criminal law, disciplinary law or both concurrently;
2. The nature of the offence; and
3. The degree of severity of the penalty which the person concerned risks incurring.
The European Court has held that Article 6 (1) contemplates a substantive rather than formal conception of the term ‘criminal charge’ in Article 6 (See e.g. Deweer v. Belgium , Application No. 6903/75, Judgement of 27 February 1980). The nature of a ‘charge’ under the European Convention also applies to the quality of the notice prescribed under Article 6 (3)(a), and to other aspects of the rights of the defence, including adequate time and facilities for the preparation of the defence under Article 6 (3)(b) and the right to counsel under Article 6 (3)(c). The object and purpose of Article 6 is thus the protection of the rights of the defence. The case-law of the European Court holds that for the purposes of Article 6 of the Convention, a criminal charge exists from the moment an individual’s situation is ‘substantially affected’ by governmental acts founded on a suspicion against him: the timing of the formal filing of charges is not determinative for triggering rights under Article 6 (Neumeister v. Austria , Application No. 1936/63, Judgement of 27 June 1968). The European Court has also stated that for the purposes of Article 6 (1) the charge could be defined as the ‘official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence’ (Eckle v. The Federal Republic of Germany , Application No. 8130/78, Judgement of 15 July 1982, para. 73). The Court in the Foti case expanded the notion to comprise ‘other measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect’ ( Foti et al. v. Italy , Application No. 7604/76, Judgement of 10 December 1982, para. 52). The European Court has found the ‘substantial effect’ standard to be met by such actions as the publication of a warrant or the search of premises or persons. On the other hand, the standard has not been met by the launching of a police investigation, the questioning of witnesses, or other activities without a direct effect on the individual.
Under the European Convention, states are free to describe any act as a crime on certain conditions. The domestic legal provisions defining an offence provide only the starting point for review by the Strasbourg organs. In this case, for example, the Court extended the notion of a criminal charge to so-called ‘regulatory offences’ (Ordnungswidrigkeiten), in part to ensure that a state could not reclassify offences in order to justify limiting the operation of the procedural guarantees set forth under Article 6. The Court has made it very clear that states may not colour a criminal matter with an administrative brush in order to escape the demands of Article 6. The Court stated in this case:
[I]f the Contracting States were able at their discretion, by classifying an offence as ‘regulatory’ instead of criminal, to exclude the operation of the fundamental clauses of Article 6 and 7, the application of these provisions would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the object and purpose of the Convention. ( Öztürk v. Federal Republic of Germany , Application No. 8544/79, Judgement of 21 February 1984).
The Weber v. Switzerland case (Application No. 11034/84, Judgement of 22 May 1990) concerned judicial proceedings conducted without a hearing, which resulted in the conviction and sentencing of a journalist for the breach of confidentiality of a judicial investigation at a press conference. In finding the proceedings related to a criminal charge in the sense of Article 6, the European Court of Human Rights distinguished between criminal and disciplinary sanctions:
Disciplinary sanctions are generally designed to ensure that the members of particular groups comply with the specific rules governing their conduct. Furthermore, in the great majority of the Contracting States disclosure of information about an investigation still pending constitutes an act incompatible with such rules and punishable under a variety of provisions. As persons who above all others are bound by the confidentiality of an investigation, judges, lawyers and all those closely associated with the functioning of the courts are liable in such an event, independently of any criminal sanctions, to disciplinary measures on account of their profession. The parties, on the other hand, only take part in the proceedings as people subject to the jurisdiction of the courts, and they therefore do not come within the disciplinary sphere of the judicial system. As [the domestic law at issue,] however, potentially affects the whole population, the offence it defines, and to which it attaches a punitive sanction, is a ‘criminal’ one. . ‘.
The notion of ‘fair hearing’. The European Convention uses the notion of a fair hearing. In Kraska v. Switzerland (Application No. 13942/88, Judgement of 19 April 1993 in order to assure that a trial is ‘fair’, the Court required a tribunal, to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessments of whether they were relevant to its decision. The requirements for a hearing to be ‘fair’ in a civil case are not necessarily identical to the requirements in criminal cases.
An evaluation of fairness is necessarily subjective rather than objective, although some threshold considerations of a more objective nature appear in the second and third paragraphs of Article 6. In this respect, it is important to keep in mind that the requirements of fairness are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. Although some of the requirements of the second and third paragraphs may be relevant to civil cases, the latitude for their application is greater in the latter.
Neither Article 6 nor the Convention organs dictate whether procedures shall be adversarial or inquisitorial. National systems of civil and criminal procedure vary greatly.
Selected additional cases
ECHR: Golder v. The United Kingdom, Application No. 4451/70, Judgement of 25 February 1975; König v. Germany, Judgement of 28 June 1978; Ringeisen v Austria, Application No. 2614/65, Judgement of 16 July 1971; Engel et al. v. The Netherlands , Application Nos. 5100/71, 5101/71, 5102/71, 5354/72, 5370/72, Judgement of 8 June 1976; Kraska v. Switzerland, Application No. 13942/88, Judgement of 19 April 1993.