ARTICLE
24 January 2025

The Right To A Fair Trial Does Not Only Apply To Criminal Proceedings But Also To Proceedings Determining Civil Rights And Obligations

Fair Trials are the only ways to safeguard and prevent any miscarriages of justice. Every person that is accused of a criminal offence should have their guilt or otherwise determined by a fair and effective legal process.
European Union Litigation, Mediation & Arbitration

Fair Trial

Fair Trials are the only ways to safeguard and prevent any miscarriages of justice. Every person that is accused of a criminal offence should have their guilt or otherwise determined by a fair and effective legal process. The right to a fair trial is not only exercised in criminal cases but also in civil cases where civil rights and obligations are concerned.

The right of access to the courts is restricted only in very specific cases such as when one keeps bringing cases without merit or when one misses the prescriptive time-limit for bringing a case. There are also times when the public and press are not invited into a hearing, this can happen due to a multitude of reasons such as; morals, to keep the public order or for the interest of national security, when children and vulnerable people are involved and for their privacy.

The right to a fair trial in proceedings determining Civil rights and obligations

One could say that the right to a fair trial in Civil cases has been given constitutional force at a national level. Most countries have adopted a provision within their constitution that speaks of a right to a fair trial. For instance, article 39(2) of the Constitution of Malta provides that:

"Any court or other adjudicating authority prescribed by law for the determination of the existence of the extend of civil rights or obligations shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time".

Apart from the force that the right to a fair trial has at a national level, this right is also enshrined in the European Convention on Human Rights ("ECHR"). Article 6 of the ECHR provides:

"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. Judgement shall be pronounced publicly by 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 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 interest of justice"

The ECHR makes it amply clear that the right to a fair trial does not only apply to criminal cases but also to civil cases from which civil rights and obligations emanate. Whether the case is of a civil nature or of a criminal nature, everyone is entitled to a fair and public hearing. Here, the principles of natural justice such as; 'nemo iudex in causa sua1' and 'audi alteram partem'2 apply, these principles go hand in hand with the right to a fair trial, in fact the term 'audi alteram partem' literally translates to; both sides must be heard.

Primarily, the right of access to a court for the purposes of article 6, was defined in 'Golder vs the United Kingdom', the right to access to a court must also be practical and effective as stated in 'Bellet vs France' and 'Zubac vs Croatia.'3

Moreover, article 6 goes on to state that apart from the trial being fair, it should also be made public. This, however, is subject to several exceptions where it is lawful for the trial not to be open to the public.4 The trial must also be heard within a reasonable amount of time and heard by an independent and impartial tribunal established by law.

Therefore, not just anyone may hear the trial, the trial must be heard by a legal authority established by law. The right to a fair hearing marginally differs from its application in criminal cases.5 In 'Dombo Beheer B.V vs The Netherlands', the court stated that; "the contracting states have a greater latitude when dealing with civil cases concerning civil rights and obligations than what they have when dealing with criminal cases"6

Moreover, in the case of 'Dulaurans vs France' the applicant complained that the court of Cassation declared inadmissible the only complaint that she had made before the court even considered that the complaint was initially raised for the first time at the stage of cessation.7 In reality, the complaint had previously been raised in the submissions at the appeal stage.8 In this case, the European court reinstated that the right to a fair hearing required that the observations of the parties must actually be heard and duly examined by the domestic tribunals.9

If one follows this principle, it means that a court has the obligation to proceed to an effective and actual examination of the complaints, arguments and evidence offered by both parties to assess their relevance.10 The European court stated that the approach that was initially taken by the court of appeal was an answer to an allegation of the applicant raised at the appeal stage and therefore, the court of cessation was not right to say that this complaint was a new one which was raised at the cessation stage.11

The European court here, went into the merits of a case and scrutinised the judicial decision to find if a procedural error was committed or not. Neither the convention in article 6 and nor the court's case law, lay down a clear definition of what is exactly understood by "civil rights and obligations." The court has held on several different counts that article 6 applies to proceedings whose outcome has a direct bearing on the determination or/and substantive content of a private right or obligation. Moreover, the Strasbourg organs declared that; "this article applies to several categories of what would often be considered as public law disputes ...."12

Many of the civil cases that fall within the scope of article 6 concern administrative proceedings affecting contracts for the sale or expropriation of land, nationalisation of property, environmental protection, practice of professions and the regulating of licences to conduct certain economic activities. However, one could not exclude cases concerning social benefits, including cases of unjust dismissal.

The right to a fair trial in determining Criminal Proceedings

Article 6 of the ECHR is more specific when it comes to criminal proceedings. In fact, it provides the minimum rights of people that are charged with a criminal offence. The legislator here, obviously wanted these rights to be clearer, than the right to a fair trial concerning civil rights and obligations, since the gravity of such offences is much more gross than those concerning civil rights and obligations and therefore required clear and concise rights.

Article 6(2) of the ECHR states that; "Everyone charged with a criminal offence shall be presumed innocent until proven guilty" this is also known as the presumption of innocence. Furthermore, article 6(3) goes on to say that; "Everyone charged with a criminal offence has the following minimum rights..." then proceeds to list multiple rights that a person charged with a criminal offence, enjoys. Important notice should be given to the word 'minimum' in this article.

This word gives the impression to the reader that this list is not full comprehensive, in essence, not exhaustive. Article 6(3)(a) states that every person charged with a criminal offence has the right to; "be informed promptly, in a language which he understands and in detail, of the nature and the cause of the accusation against him";

Moreover, article 6(3)(b) of the ECHR, states that; "Everyone being charged with a criminal offence has the right to have adequate time and facilities for the preparation of his defence;" In the cases of 'Mattocia vs Italy', 'Backstrom and Andersson Vs Sweden' and 'Varela Geis vs Spain' the court reinstated article 6(3)(b) and stated that the accused must be provided with adequate time and facilities to react to the accusation and to organise his defence on the basis of any new information or allegation.13

In conclusion, the right to a fair trial is fundamental to justice, applying to both criminal and civil cases. It ensures impartiality, transparency, and access to an effective legal process, as enshrined in national constitutions and the European Convention on Human Rights. By safeguarding these principles, societies protect against injustice and uphold trust in the legal system.

Footnotes

1. No one is a judge in their own case.

2. The principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence produced against it.

3. 4 December 1995, Series A no. 333-B; [GC], no. 40160/12, 5 April 2018; Council of Europe/European Court of Human Rights, 'Guide on Article 6: Right to A Fair Trial (Civil Limb)' (Council of Europe 2020)

4. Christos Rozakis, 'The Right to A Fair Trial in Civil Cases' 4:2 Judicial Studies Institute Journals.105

5. Christos Rozakis, 'The Right to A Fair Trial in Civil Cases' 4:2 Judicial Studies Institute Journals. 109

6. Christos Rozakis, 'The Right to A Fair Trial in Civil Cases' 4:2 Judicial Studies Institute Journals. 110; [1993] E.C.H.R. 49 14448/88

7. [2000] E.C.H.R. 108, 34553/97; Council of Europe/European Court of Human Rights, 'Guide on Article 6: Right To A Fair Trial (Civil Limb)' (Council of Europe 2020).

8. Christos Rozakis, 'The Right to A Fair Trial in Civil Cases' 4:2 Judicial Studies Institute Journals. 103

9. Christos Rozakis, 'The Right to A Fair Trial in Civil Cases' 4:2 Judicial Studies Institute Journals. 103

10. Ibid.

11. Council of Europe/European Court of Human Rights, 'Guide On Article 6: Right To A Fair Trial (Civil Limb)' (Council of Europe 2020).

12. Harris, D.J., Boyle, M.O., and Warbrick, C., Law of the European Convention on Human Rights (Butterworth, London, 1995), pp. 189 et seq.

13. Council of Europe/European Court of Human Rights, 'Guide On Article 6: Right To A Fair Trial (Criminal Limb)' (Council of Europe 2020); Bäckström and Andersson v. Sweden (dec.), no. 67930/01, 5 September 2006;

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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