User:Gerichtsadler/Article 6 of the European Convention on Human Rights

Application

The concept of “civil rights and obligations” at the beginning of Article 6 applies to ones granted at the level of the CoE and not at the national level. Accordingly, the applicability of Article 6 is contingent on the existence of a breach of such “civil rights and obligations” regardless of the national classification, a relevant “right” that is breached, and a judgment that provides a decisive outcome from the dispute. Firstly, to determine the existence of a breach, the dispute must have a concrete matter with contentious details (e.g., in Omdahl v. Norway (2021), the court dealt with the matter of time in which the applicant would be entitled to his grandfather’s possessions). Thus, relevant violations come from excessive delays, due to the "reasonable time" requirement in civil and criminal proceedings before national courts.

Secondly, although the CoE maintains autonomy under the rights of the ECHR, it still necessitates an arguable basis under the contracting state’s national law. Thus, the breached relevant “right” must be determined, particularly whether an applicant’s argument is “sufficiently tenable.” The exception to the reliance on national law rights is when the national law provides for a right that is not recognized by the ECtHR. Due to the autonomy of the ECtHR, underscored by the "independent tribunal" requirement, the Court overruled a Turkish decision in Assanidze v. Georgia (2004) and rendered the Turkish military tribunal’s decision incompatible with Article 6.

Finally, when assessing the applicability of Article 6 to determine a fair trial right violation, the Court examines whether the “right” at hand is civil under the domestic setting to ascertain a decisive outcome. Like precedents established in other rights guaranteed in the ECtHR, such as non bis in idem, the Court determines violations according to their tangible content and penal repercussions, as opposed to solely off of national statutory provisions. In states that either are negligent in guaranteeing rights relevant to a fair trial or deliberately penalize an actor against the rights that are guaranteed in Article 6, the ECtHR considers such matters to provide a relevant decisive outcome.