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Guide on Article 6 of the European Convention on Human Rights

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Guide on Article 6 of the European Convention on Human Rights Guide on Article 6 of the European Convention on Human Rights Right to a fair trial (criminal limb) Updated on 31 August 2021 This Guide has been prepared by the Registry and does not bind the Court. Guide on Article 6 of the Convention – Right to a fair trial (criminal limb) Publishers or organisations wishing to translate and/or reproduce all or part of this report in the form of a printed or electronic publication are invited to contact [email protected] for information on the authorisation procedure. If you wish to know which translations of the Case-Law Guides are currently under way, please see Pending translations. This Guide was originally drafted in English. It is updated regularly and, most recently, on 31 August 2021. It may be subject to editorial revision. The Case-Law Guides are available for downloading at www.echr.coe.int (Case-law – Case-law analysis – Case-law guides). For publication updates, please follow the Court’s Twitter account at https://twitter.com/ECHR_CEDH. © Council of Europe/European Court of Human Rights, 2021 European Court of Human Rights 2/124 Last update: 31.08.2021 Guide on Article 6 of the Convention – Right to a fair trial (criminal limb) Contents Note to readers .............................................................................................. 5 I. General considerations of Article 6 in its criminal aspect ........................... 7 A. The fundamental principles ........................................................................................................ 7 B. Waiver ......................................................................................................................................... 8 II. Scope: the notion of “criminal charge” ..................................................... 9 A. General principles ....................................................................................................................... 9 1. The existence of a “charge” .................................................................................................. 9 2. The “criminal” nature of a charge ....................................................................................... 10 B. Application of the general principles ........................................................................................ 11 1. Disciplinary proceedings ..................................................................................................... 11 2. Administrative, tax, customs, financial and competition-law proceedings and other special proceedings ............................................................................................................ 13 3. Political issues ..................................................................................................................... 14 4. Expulsion and extradition ................................................................................................... 14 5. Different stages of criminal proceedings, ancillary proceedings and subsequent remedies ............................................................................................................................. 14 III. Right of access to a court ....................................................................... 16 Limitations ...................................................................................................................................... 16 1. Parliamentary immunity ..................................................................................................... 16 2. Procedural rules .................................................................................................................. 17 3. Requirement of enforcement of a previous decision ......................................................... 17 4. Other restrictions in breach of the right of access to a court ............................................. 18 IV. General guarantees: institutional requirements .................................... 19 A. The notion of a “tribunal” ......................................................................................................... 19 B. Tribunal established by law ...................................................................................................... 20 1. The relevant principles........................................................................................................ 20 2. Examples ............................................................................................................................. 22 C. Independence and impartiality ................................................................................................. 22 1. Independent tribunal .......................................................................................................... 23 2. Impartial tribunal ................................................................................................................ 25 V. General guarantees: procedural requirements ....................................... 32 A. Fairness ..................................................................................................................................... 32 1. Effective participation in the proceedings .......................................................................... 32 2. Equality of arms and adversarial proceedings .................................................................... 33 3. Reasoning of judicial decisions ........................................................................................... 37 4. Right to remain silent and not to incriminate oneself ........................................................ 40 5. Administration of evidence ................................................................................................. 42 6. Entrapment ......................................................................................................................... 45 7. The principle of immediacy ................................................................................................. 49 8. Legal certainty and divergent case-law .............................................................................. 51 9. Prejudicial publicity ............................................................................................................. 52 10. Plea bargaining.................................................................................................................. 52 European Court of Human Rights 3/124 Last update: 31.08.2021 Guide on Article 6 of the Convention – Right to a fair trial (criminal limb) B. Public hearing ........................................................................................................................... 53 1. The principle of publicity .................................................................................................... 53 2. The right to an oral hearing and presence at the hearing .................................................. 54 3. Exceptions to the rule of publicity ...................................................................................... 58 4. Public pronouncement of judgments ................................................................................. 59 C. Reasonable time ....................................................................................................................... 60 1. Determination of the length of proceedings ...................................................................... 60 2. Assessment of a reasonable time ....................................................................................... 61 3. Several examples ................................................................................................................ 63 VI. Specific guarantees ............................................................................... 64 A. The presumption of innocence (Article 6 § 2) .......................................................................... 64 1. Scope of Article 6 § 2 .......................................................................................................... 64 2. Prejudicial statements ........................................................................................................ 67 3. Adverse press campaign ..................................................................................................... 70 4. Sanctions for failure to provide information ...................................................................... 70 5. Burden of proof ................................................................................................................... 70 6. Presumptions of fact and of law ......................................................................................... 71 B. The rights of the defence (Article 6 § 3) ................................................................................... 72 1. Information on the nature and cause of the accusation (Article 6 § 3 (a)) ........................ 73 2. Preparation of the defence (Article 6 § 3 (b)) ..................................................................... 76 3. Right to defend oneself in person or through legal assistance (Article 6 § 3 (c)) ............... 79 4. Examination of witnesses (Article 6 § 3 (d)) ....................................................................... 89 5. Interpretation (Article 6 § 3 (e)) .......................................................................................... 99 VII. Extra-territorial effect of Article
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