12. Article 6: right to a fair trial

2021 ◽  
pp. 252-292
Author(s):  
Howard Davis
Keyword(s):  
Civil Rights ◽  
National Security ◽  
Fair Trial ◽  
European Convention ◽  
Public Interests ◽  
Key Points ◽  
Criminal Charge ◽  
Fair Hearing ◽  
The Right ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. Article 6 is the right to a fair trial. It looks at the scope of Article 6—the kinds of trial it deals with; and defines ‘determines’, ‘civil rights and obligations’, and ‘criminal charge’ for this purpose. It then goes on to consider the specific rights that are inherent in the idea of a hearing that is ‘fair’ and tribunal that is ‘independent’ and ‘impartial’. It also discusses the additional rights that are enjoyed by a defendant in a criminal trial. Of particular importance is the issue of adjusting the concept of ‘fairness’ to the circumstances, particularly in the context of threats to national security. The need to protect the essence of a right to a fair hearing where there are important public interests justifying restrictions is an issue that is at the heart of the Article 6 case law.

11. Article 5: right to liberty and security

2021 ◽  
pp. 224-251
Author(s):  
Howard Davis
Keyword(s):  
Mentally Ill ◽  
Personal Autonomy ◽  
European Convention ◽  
Legal Knowledge ◽  
Key Points ◽  
Social Subordination ◽  
Immigration And Asylum ◽  
The Right ◽  
Article 5 ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter discusses Article 5 the right to liberty. This is liberty in its classic sense, addressing the physical liberty of a person (as opposed to broader concepts of liberty, such as the sense of personal autonomy and the lack of individual or social subordination). Article 5 deals with restrictions of liberty like arrest and detention by the police, imprisonment after conviction, detention of the mentally ill in hospitals, and the detention of foreigners in the context of immigration and asylum. It defines and restricts the purposes for which a person can be deprived of his or her liberty and, importantly, requires that people have access to judicial supervision so that the lawfulness of any deprivation of liberty can be examined and, if necessary, remedied. The overriding guarantee of Article 5 is the right not to be detained in an arbitrary manner.

9. Article 6: The right to a fair trial

2018 ◽  
Author(s):  
David Harris ◽  
Michael O’Boyle ◽  
Ed Bates ◽  
Carla Buckley
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Public Hearing ◽  
Legal Assistance ◽  
Criminal Cases ◽  
Reasonable Time ◽  
Criminal Charge ◽  
The Right

This chapter discusses Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial in both criminal and non-criminal cases. In all cases, it guarantees the right to a fair and public hearing trial within a reasonable time by an independent and impartial tribunal established by law. There are particular guarantees for persons subject to a criminal charge, including the right to be presumed innocent, to be informed of the charge, to adequate time and facilities to prepare the accused’s defence, to legal assistance, to examine and cross-examine witnesses, and to an interpreter.

17. Article 10: freedom of expression

2021 ◽  
pp. 360-389
Author(s):  
Howard Davis
Keyword(s):  
Hate Speech ◽  
Freedom Of Expression ◽  
Fundamental Rights ◽  
European Convention ◽  
Liberal Democratic ◽  
Key Points ◽  
Liberal Democratic Society ◽  
The Right ◽  
The Impact ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter focuses on Article 10, one of the fundamental rights acknowledged in a liberal, democratic society—freedom of expression. Article 10 is a qualified right which reflects the idea that there can be important and legitimate reasons as to why freedom of expression may need to be restricted in order to protect other important rights and freedoms. While the first paragraph of Article 10 establishes a general right to freedom of expression, its second paragraph identifies the only bases upon which the right can be restricted. Restriction of the freedom of expression is subject to scrutiny by the courts, and its necessity must be established by the state. In particular the chapter discusses human rights in the context of political speech and the impact of restraints on hate speech.

scholarly journals Inconsistent Adjudication – A Violation of the Right to Fair Trial Under the European Convention on Human Rights

2021 ◽  
Vol 69 (2) ◽  
pp. 315-338
Author(s):  
Dragoljub Popović
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
National Courts ◽  
National Jurisdiction ◽  
Fair Hearing ◽  
Grand Chamber ◽  
The Right ◽  
Domestic Case

The ECtHR does not review decisions of national courts of the States Parties to the European Convention. However, it has developed a pattern in its case law to find a violation of the Convention on the grounds that the fair hearing lacked if there was a case law inconsistency at the level of national jurisdiction. The ECtHR case law was settled in a Grand Chamber case against Turkey in 2011. To find a violation under Article 6 of the Convention the ECtHR requires two tests. Firstly, it must establish the existence of a profound and long-standing inconsistency in the domestic case law, and secondly, the ECtHR raises the issue of a mechanism aimed at removing the inconsistency. If the mechanism does not exist, or if it applied ineffectively, the ECtHR finds a violation of human rights. The author suggests the ECtHR should revisit its jurisprudence.

26. Anti-terrorism law and human rights

2021 ◽  
pp. 500-522
Author(s):  
Howard Davis
Keyword(s):  
Human Rights ◽  
Private Life ◽  
European Convention ◽  
Key Points ◽  
Definition Of ◽  
The Uk ◽  
The Right ◽  
Special Circumstances ◽  
The Impact ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of la and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter considers the application of human rights in the special circumstances of the threat of terrorism and counter-terrorism measures taken in the UK. It considers the compatibility of the Terrorism Act 2000, and other subsequent measures, with human rights. This includes matters such as the definition of terrorism, police powers under the Act (such as random stop and search), and measures, such as TPIMs, to control terrorist suspects. The impact of these measures on the right to liberty and on private life are important themes. The chapter also considers the effect of such measures on the right to a fair hearing (in Articles 5 and 6). These special powers are often controversial giving rise, as they do, to important tensions between the rule of law and the duty on states to uphold the safety and security of the population.

16. Article 9: freedom of thought, conscience, and religion

2021 ◽  
pp. 343-359
Author(s):  
Howard Davis
Keyword(s):  
Religious Beliefs ◽  
Conscientious Objection ◽  
European Convention ◽  
Legal Knowledge ◽  
Article 9 ◽  
Key Points ◽  
Freedom Of Thought ◽  
Religious Dress ◽  
The Right ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter discusses Article 9, which establishes a general right to freedom of ‘thought, conscience, and religion’. The right to ‘manifest’ belief is ‘qualified’ in the sense that justified interferences are allowed. The duty of a court addressing an Article 9 issue is to decide whether there has been an interference, for which the state is responsible, that either restricts a person in holding religious beliefs or restricts the manifestation of belief. Manifestations of belief can be restricted if the restriction can be justified under the terms of Article 9(2). Important issues involving conscientious objection and the wearing of religious dress both in the context of employment and generally are considered in relation to justification. Article 9 can often be invoked in tandem with other Convention rights that also help to secure freedom of religion and belief.

scholarly journals In Search of ‘Red Lines’ in the Jurisprudence of the ECtHR on Fair Trial Rights

2017 ◽  
Vol 50 (2) ◽  
pp. 177-209
Author(s):  
Shlomit Stein
Keyword(s):  
Human Rights ◽  
Ad Hoc ◽  
Fair Trial ◽  
European Convention ◽  
Unique Contribution ◽  
Public Interests ◽  
Clear Cut ◽  
European Court ◽  
Laws And Policies ◽  
The Right

The use of proportionality and balancing by the European Court of Human Rights (ECtHR) is inconsistent and does not provide clear guidelines from which policies can be drafted that could strike a fair balance between individual rights and public interests while not impairing the essence of the rights at stake. While ad hoc and unprincipled balancing may be justified on the theoretical level, on the practical level a policymaker seeking to understand which infringements constitute clear violations of the European Convention on Human Rights (ECHR) is left confused. This article adds clarity to this state of bewilderment by breaking down several aspects of the ECHR rights to a fair trial into clear-cut ‘red lines’, or minimum thresholds of protection. Overstepping those could result in a violation of the right concerned. Identifying these red lines is intended to assist legislators and policymakers in drafting laws and policies that conform with the obligations of their states under the ECHR, and to instruct policymakers outside the member states of the Council of Europe. Because of its unique characteristics, as well as the volume and breadth of its case law, the jurisprudence of the ECtHR can be a lodestone for the consolidation of an international human rights community based on shared values. The unique contribution of this article is the assessment of ECtHR jurisprudence not only on its own merits, but also in comparison with the jurisprudence of other international courts.

scholarly journals The Right to a Fair Trial before The European Court of Human Rights

2019 ◽  
Vol 2 (2) ◽  
pp. p133
Author(s):  
Alaa Mohamed Ismail Abdrabo
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Fair Trial ◽  
European Convention ◽  
New Work ◽  
Criminal Proceedings ◽  
European Court ◽  
Criminal Charges ◽  
The Right ◽  
Right Of Access

Article 6 of the European Convention on Human Rights (ECHR) guarantees the right to a fair trial, applies to disputes relating to civil rights and obligations as well as to criminal charges. The right to a fair trial includes, inter alia, the right of access to a court, the right to be heard and the equality of arms between the parties. This challenging new work elucidates the meaning of the fair trial and looks at the fair trials jurisprudence of the ECHR.Article 6 of the European Convention on Human Rights has become the defining standard within Europe for determining the fairness of criminal proceedings. Its success has been attributed to the fact that it is not based on a particular model of criminal procedure.

12. The Right to a Fair Trial in Civil and Criminal Cases

2020 ◽  
pp. 277-312
Author(s):  
Bernadette Rainey ◽  
Pamela McCormick ◽  
Clare Ovey
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Criminal Cases ◽  
Legal Proceedings ◽  
National Courts ◽  
Fair Hearing ◽  
Civil Cases ◽  
The Right ◽  
Right Of Access

This chapter examines the provisions of the European Convention on Human Rights (ECHR) on the right to a fair trial in criminal and civil cases, explaining that Article 6 of ECHR holds that the Strasbourg Court has no jurisdiction to reopen national legal proceedings or to substitute its own findings of fact for the conclusions of national courts. The chapter examines the interpretation by the Strasbourg Court of the protections provided by Article 6 in the extensive jurisprudence on this Article and discusses issues concerning the overall requirements of a fair hearing, right of access to court, and the extraterritorial effect of Article 6.

19. Article 12: right to marry

2021 ◽  
pp. 407-413
Author(s):  
Howard Davis
Keyword(s):  
Legal Protection ◽  
European Convention ◽  
Human Right ◽  
European Court ◽  
Margin Of Appreciation ◽  
Key Points ◽  
Public Recognition ◽  
The Right ◽  
Domestic Law ◽  
Primary Unit

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter deals with Article 12, the right to marry and found a family. The right can be qualified by reference to ‘national laws’. This qualification permits states to regulate and restrict marriage so long as the ‘essence’ of the right is not compromised. The human right to marriage gives public recognition and legal protection to the primary unit through which children are conceived and brought up. The European Court of Human Rights tends to allow a wide margin of appreciation in respect of issues over which a clear European consensus has yet to emerge. A number of issues are also discussed in Chapter 15, on Article 8.

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