“The common law always contained due process principles. Article 6 of ECHR merely provides a new way of thinking about them as human rights. ” Discuss.. Article 6 of the ECHR builds up a body of principles that relate to fair trial rights in regular courts. Nevertheless, an essential question which applies to both special tribunals and courts still remains whether they operate with sufficient fair trial guarantees. The term ‘due process’ refers to the legal obligation that a state must respect and provide all of the legal rights that are owed to a person.
Due process balances the power of law of the land and protects the individuals from it. For example, when a government harms a person without following the exact course of the law, this constitutes a due process violation. The common law is a law developed by judges through decisions of courts and similar tribunals as opposed to statutes adopted through the legislative process issued by the executive bench. It does contain due process principles as well as other basic human rights but it is to a certain degree. The European Court of Human Right which is located in Strasburg was established by the European Conventions on Human rights.
It hears complaints that one of the 47 member state has violated the human rights written in the convention and its rules. Complaints can be brought by an individual or other contracting state and the court can also issue advisory opinion. Article 6 of the European Courts of Human Rights focuses basically on the right to a fair trial. Section 1 of the Article states that “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.
Judgment shall be pronounced publicly but 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 the 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 interests of justice.. ” The Section 2 of the same act states that “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
Section 3 explains further that “Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him. (b) to have adequate time and facilities for the preparation of his defence. (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court. ” The reaction of the common law courts to the European Court of Human Right is seen in the response of two very important cases of H v. Belgium and James v. UK. In H v. Belgium  H was a Belgian citizen who had been
H has tried unsuccessfully to be reinstated. The court held that there has been a breach of Article 6 by the tribunal that had considered H’s re-admission. The court’s reasoning was based on 2 grounds: firstly, there was no right to challenge the tribunal’s decision. And secondly, the decision was not adequately reasoned. In James v. United Kingdom  the applicants were the trustees of the Duke of Westminster. The estate contained certain properties that had been let to tenants.
The tenants had made use of the Leasehold Reform Act 1967 to buy the properties from the estate. The trustees complained that both the compulsory transfer and the prices received for the properties amounted to a breach of, inter alia, their Article 6 rights. The courts held that there had been no breach. The courts argued that: (a)Article 6 does not require that there be a national court with competence to invalidate or override national law. It does not guarantee any particular content for ‘civil rights and obligations’ on the substantive law of contracting states. b)In so far as the applicants considered that there was non-compliance with the leasehold reform legislation they had unimpeded access to a tribunal competent to determine the issue.
In cases which determine civil rights and in criminal cases, it protects the right to a public hearing in front of an independent and impartial tribunal within reasonable time, the presumption of innocence and the other minimum rights for those charges in a criminal case such as: adequate time and facilities to prepare their defense, access o legal representation, right to examine witnessed against them to have them examined, right to the free assistance of an interpreter. Mainly most of the Convention violations that the courts find are excessive delays, in the violation of the “reasonable time” requirement. Another significant set of violations concerns the “confrontational clause” of Article 6 which protects the right to examine witnessed or have them examined. In this aspect, problems of compliance with Article 6 may arise when national laws allow the use in evidence of the testimonies of absent, anonymous and vulnerable witnesses.
The response of the English courts to the Article 6 of ECHR was seen in the case of Fayed v. United Kingdom  where the court argued that, “A fair balance had to be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. It’s not always easy to trace the dividing line between procedural and substantive limitations of a given entitlement of a domestic law. And in the case of Osman v United Kingdom  allegations were raised about the alleged failure of the police to protect right to life and lawfulness of restrictions on right of access to a court. The appellants argued that thru k government had deprived them of a right of action in negligence against the police. The ECHR found that the appellants had been deprived of the right of access to the court. The ECHR went on to argue that Article 6(1) embodies the ‘right to a court’, of which the right of access, or the right to institute proceedings before a court in civil matters.
The Article 6 of the ECHR is merely provided for thinking deeply about the rights to a fair trial more seriously as it could be easily breached by the courts. If it had been kept as a common law, the full rights of the individuals to an independent and impartial tribunal would have been not granted. And as a result of that, many individuals who have been accused of a crime would have been falsely imprisoned on the basis of not enough representation or unjust representation.