The applicant a Belgian, had been convicted of forgery. He said that the court had not been an impartial tribunal because one of the judges had also acted as an investigating judge in his case. Amongst the grounds on which it was contended that there had been no breach of Article 6(1) was the submission that there was a right of appeal to an appellate courts which was accepted to be impartial; that the Belgian Court of Cassation had rightly held that the court hearing the case at first instance did not have to satisfy the requirements of Article 6(1), provided that the accused was able to appeal to a court that offered all the guarantees stipulated by Article 6(1) and was able to review all questions of fact and law.
Held: The possibility of a fair trial on an appeal is not alone sufficient to compensate for a lack of independence and impartiality on the part of the primary decision-maker. The contentions advanced by Belgium were rejected: ‘The thrust of the plea summarised above is that the proceedings before the Oudenaarde court fell outside the ambit of Article 6(1). At first sight, this plea contains an element of paradox. Article 6 (1) concerns primarily courts of first instance; it does not require the existence of courts of further instance. It is true that the fundamental guarantees, including impartiality, must also be provided by any courts of appeal or courts of cassation which a Contracting State may have chosen to set up. However, even when this is the case it does not follow that the lower courts do not have to provide the required guarantees. Such a result would be at variance with the intention underlying the creation of several levels of courts, namely, to reinforce the protection afforded to litigants. . . . At the hearings, the Commission’s Delegate and the applicant’s lawyer raised a further question, concerning not the applicability of Article 6 (1) but rather its application to the particular facts: had not the ‘subsequent intervention’ of the Ghent Court of Appeal ‘made good the wrong’ or ‘purged’ the first instance proceedings of the ‘defect’ that vitiated them? . . . The possibility certainly exists that a higher or the highest court might, in some circumstances, make reparation for an initial violation of one of the Convention’s provisions: this is precisely the reason for the existence of the rule of exhaustion of domestic remedies, contained in Article 26. Thus the Adolf judgment of 26 March 1982 noted that the Austrian Supreme Court had ‘cleared . . of any finding of guilt’ an applicant in respect of whom a District Court had not respected the principle of presumption of innocence laid down by Article 6(2).
The circumstances of the present case, however, were different. The particular defect in question did not bear solely upon the conduct of the first instance proceedings: its source being the very composition of the Oudenaarde criminal court, the defect concerned matters of internal organisation, and the Court of Appeal did not cure that defect since it did not quash on that ground the judgment of 29 June 1979 in its entirety’.
9186/80, (1985) 7 EHRR 236, [1984] ECHR 14, [1987] ECHR 22, [1984] EHRR 236, (1987) 13 EHRR 422
Worldlii, Worldlii, Bailii, Bailii
European Convention on Human Rights 6(1)
Human Rights
Cited by:
Cited – Dyson Limited v The Registrar of Trade Marks ChD 15-May-2003
Applications for trade marks on behalf of the claimant had been rejected. Acquired distinctiveness was a significant issue, and the question of whether the appeal was a review or a rehearing was significant. In this appeal, the parties had given . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Nov-2004
The defendant had heard that the sentencing judge would set his sentence tarriff without an oral hearing, and would then give his decision in open court. He sought judicial review.
Held: Review was granted. The availability of a right of . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Nov-2004
The defendant had heard that the sentencing judge would set his sentence tarriff without an oral hearing, and would then give his decision in open court. He sought judicial review.
Held: Review was granted. The availability of a right of . .
Cited – Greenfield, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the . .
Cited – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department HL 1-Dec-2005
The claimants had been convicted of murder, but their tariffs had not yet been set when the 2003 Act came into effect. They said that the procedure under which their sentence tarriffs were set were not compliant with their human rights in that the . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Criminal Practice
Updated: 18 December 2021; Ref: scu.164997