Right to a fair hearing
The right to a fair trial is fundamental to the rule of law and to democracy itself. The right applies to both criminal and civil cases, although certain specific minimum rights set out in Article 6 apply only in criminal cases.
The right to a fair trial is absolute and cannot be limited. It requires a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The procedural requirements of a fair hearing might differ according to the circumstances of the accused.
The right to a fair hearing, which applies to any criminal charge as well as to the determination of civil rights and obligations, contains a number of requirements.
1. There must be real and effective access to a court (although there are limited exceptions in the case of vexatious litigants, minors, prisoners etc). To be real and effective this may require access to legal aid.
2. There must be a hearing before an independent and impartial court or tribunal established by law (including unbiased jurors).
3. The hearing and judgment must be made public. Hearings can, however, be held in private where:
- it can be shown to be necessary and proportionate and in the interest of morals, public order or national security in a democratic society, or
- it is in the best interests of a child; or
- it is required for the protection of the private life of the parties ; or
- it is strictly necessary in special circumstances where publicity, in the court’s opinion, would prejudice the interests of justice.
4. The hearing must be held within a reasonable time. What is reasonable depends on the complexity of the case, its importance, the behaviour of both the applicant and competent authorities, and the length of time between the conduct in question (i.e. when the offence was committed or contract breached etc) and when the trial takes place.
5. The applicant must have a real opportunity to present his or her case or challenge the case against them. This will require access to an opponent’s submissions, procedural equality and generally requires access to evidence relied on by the other party and an oral hearing.
6. The court of tribunal must give reasons for its judgment.
7. There must be equality of arms between the parties, so, for example, the defence has the same right to examine witnesses against them as the prosecution has and both parties have the right to legal representation etc.
8. In criminal cases, there is a right to silence and a privilege against self-incrimination (although it may be possible to draw adverse inferences from suspects remaining silent).
9. An accused person must have the right to effective participation in their criminal trial. Except for strictly limited exceptions, an accused is entitled to be physically present at his or her hearing to give evidence in person and be legally represented.
Determination of civil rights and obligations
The determination of a person’s civil rights and obligations applies to private rights owed to individuals personally, and not to purely public rights owed to society at large. So, for example, the following areas are generally considered to be governed by the Article 6 right to a fair trial:
- property rights;
- right to practise a profession;
- family rights;
- right to compensation;
- right to engage in commercial activities;
- some employment decisions;
- control orders;
- anti-social behaviour orders etc.
Taken from• “A Parliamentarian’s Guide to the Human Rights Act”
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