European Convention Of Human Rights Analysis

2569 words - 10 pages

The right to a fair trial has a vital importance in the European Convention of Human Rights, due to the fact of the huge number of applications and its jurisprudence. Fair trial is the pillar concerning the rule of law and a part of the common heritage, in civil and criminal cases in a democratic society. Article 6 allow individuals to have fair proceedings in criminal cases, and to award damages in civil cases. Furthermore, most states in Europe developed their domestic law, in order to comply with the provisions of Article 6. However, there is a concern whether Article 6 should remain restricted to cases involving a “criminal charge” and “civil rights and obligations” as interpreted in the current case law, or not, or whether it could expanded to other areas of law such as commercial e.t.c. Problems arise due to the limitations of the Article 6, in relation to civil and criminal cases such as lengthy proceedings and protection only of violations of the states.
The first issue that need to be considered is the “fourth instance” doctrine. In relation to this doctrine, the question arises of how close the European Court will control the operation of the national courts. The Strasbourg court follows this doctrine and will not involved to question the procedure that the national court had taken a decision. Domestic courts of the states are free to create a framework of rules to reach a final decision as long as there was a fair trial. Thus, the ECJ will be unwilling to disapprove a decision of a national court of a member state. Furthermore, in criminal cases the interpretation of Article 6 is much more complicated due to the fact of the existence of many differences between the common law and civil law of the criminal justice of each state. Consequently, because of the existence of different legal systems it will be more difficult to set standards for a human rights guarantee for a fair trial. Article 6 does not allocate a specific content of these rights in the Contracting States legal systems.
As Article 6 protects violations of abuses in criminal and civil procedures, a criminal charge must first be established. According to the leading case Engel v Netherlands “Criminal charge has an autonomous Convention meaning”, totally independed from the national legal orders. Hence, it will be possible to have conformity of approach to all countries of Europe and stop states if they will try to avoid Convention controls by dividing offences to disciplinary, administrative or civil matters. In Engel v Netherlands a three part test was determined in order to assess the criminal charge of Article 6. The first step is the classification of the process under national law, secondly the nature of the offence and thirdly if the level of severity of the penalty of the offence could lead to loss of liberty. The national classification is important because if a matter will fall under criminal in national law, then it will be sufficient to fall...

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