The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made in circumstances of constraint and under protest, a violation of Article 6(1) was found. However: ‘The ‘right to a court’, which is a constituent element of the right to a fair trial, is no more absolute in criminal than in civil matters. In the Contracting States’ domestic legal systems, a waiver of this kind is frequently encountered both in civil matters, notably in the shape of arbitration clauses in contracts, and in criminal matters in the shape inter alia of fines paid by way of composition. The waiver, which has undeniable advantages for the individual concerned as well as for the administration of justice, does not in principle offend against the Convention; on this point the court shares the view of the Commission.’ The court looks behind the appearances and investigates the realities of the procedure.
The court decided:
‘(a) ‘Criminal charge’ is an ‘autonomous’ concept which must be understood within the meaning of the Convention.
(b) The term has a ‘substantive’ rather than a ‘formal’ meaning.
(c) On the facts, the Court held the proceedings against the applicant had constituted a ‘criminal charge’ which could be defined as ‘the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence’.’
The Court reflected this: ‘There accordingly exists a combination of concordant factors conclusively demonstrating that the case has a criminal character under the Convention. The ‘charge’ could, for the purposes of Article 6(1), be defined as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence. In several decisions and opinions the Commission has adopted a test that appears to be fairly closely related, namely, whether ‘the situation of the [suspect] has been substantially affected’.’
H Mosler, P
6903/75, (1980) 2 EHRR 439, [1980] ECHR 1, (1979-80) 2 EHRR 439, [1980] ECC 169
Worldlii, Bailii
European Convention on Human Rights 6(1)
Human Rights
Cited by:
Cited – Di Placito v Slater and others CA 19-Dec-2003
The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action.
Held: When considering whether to discharge such an . .
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Cited – Stretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .
Cited – Nordstrom-Janzon v The Netherlands ECHR 1996
The parties had settled an earlier dispute under a joint venture agreement on terms which included a provision that disputes between them should not be settled by the ordinary courts but by a special arbitration procedure. The arbitrators rejected . .
Cited – Halsey v Milton Keynes General NHS Trust etc CA 11-May-2004
The court considered the effect on costs orders of a refusal to take part in alternate dispute resolution procedures. The defendant Trust had refused to take the dispute to a mediation. In neither case had the court ordered or recommended ADR.
Cited – Eckle v Germany ECHR 15-Jul-1982
Two fraud prosecutions against the claimants had lasted for 15 and 20 years respectively.
Held: Article 6.1 applies to all stages of criminal proceedings, including sentencing and any appeal. The ‘reasonable time’ in criminal matters, . .
Cited – Zaichenko v Russia ECHR 18-Feb-2010
(First Section) The claimant complaned that he had not been allowed access to a lawyer when being questioned by police when he was not under arrest. He had been stopped driving home from work and his car inspected by the police after reports of . .
Cited – Ambrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
Cited – McGowan (Procurator Fiscal) v B SC 23-Nov-2011
The appellant complained that after arrest, though he had been advised of his right to legal advice, and had declined the offer, it was still wrong to have his subsequent interview relied upon at his trial.
Held: It was not incompatible with . .
Cited – Wright v Michael Wright Supplies Ltd and Another CA 27-Mar-2013
The appellant said that the judge had erred in allowing only written evidence. The case was long running, complex, unwieldy and the intransigent parties were each acting as litigants in person.
Held: The court asked whether mediation might not . .
Cited – O’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
Cited – Saunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
Cited – J, Regina v CACD 2-Jul-2001
Orse Attorney General’s Reference No 2 of 2001
The AG sought to appeal from the decision that an indictment against the seven defendants should be stayed on the ground that there had been a breach of Article 6(1). They were accused of . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2021; Ref: scu.164885 br>