European Court of Human Rights - case of Golder v. The UK (1975) (excerpts)

European Court of Human Rights - case of Golder v. The UK (1975) (excerpts)

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32. The clearest indications are to be found in the French text, first sentence. In the field of "contestations civiles" (civil claims) everyone has a right to proceedings instituted by or against him being conducted in a certain way - "équitablement" (fairly), "publiquement" (publicly), "dans un délai raisonnable" (within a reasonable time), etc. - but also and primarily "à ce que sa cause soit entendue" (that his case be heard) not by any authority whatever but "par un tribunal" (by a court or tribunal) within the meaning of Article 6 para. 1 (art. 6-1) (Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, para. 95). The Government have emphasised rightly that in French "cause" may mean "procès qui se plaide" (Littré, Dictionnaire de la langue française, tome I, p. 509, 5o). This, however, is not the sole ordinary sense of this noun; it serves also to indicate by extension "l'ensemble des intérêts à soutenir, à faire prévaloir" (Paul Robert, Dictionnaire alphabétique et analogique de la langue française, tome I, p. 666, II-2o). Similarly, the "contestation" (claim) generally exists prior to the legal proceedings and is a concept independent of them. As regards the phrase "tribunal indépendant et impartial établi par la loi" (independent and impartial tribunal established by law), it conjures up the idea of organisation rather than that of functioning, of institutions rather than of procedure.

The English text, for its part, speaks of an "independent and impartial tribunal established by law". Moreover, the phrase "in the determination of his civil rights and obligations", on which the Government have relied in support of their contention, does not necessarily refer only to judicial proceedings already pending; as the Commission have observed, it may be taken as synonymous with "wherever his civil rights and obligations are being determined" (paragraph 52 of the report). It too would then imply the right to have the determination of disputes relating to civil rights and obligations made by a court or "tribunal".

The Government have submitted that the expressions "fair and public hearing" and "within a reasonable time", the second sentence in paragraph 1 ("judgment", "trial"), and paragraph 3 of Article 6 (art. 6-1, art. 6-3) clearly presuppose proceedings pending before a court.

While the right to a fair, public and expeditious judicial procedure can assuredly apply only to proceedings in being, it does not, however, necessarily follow that a right to the very institution of such proceedings is thereby excluded; the Delegates of the Commission rightly underlined this at paragraph 21 of their memorial. Besides, in criminal matters, the "reasonable time" may start to run from a date prior to the seisin of the trial court, of the "tribunal" competent for the "determination ... of (the) criminal charge" (Wemhoff judgment of 27 June 1968, Series A no. 7, pp. 26-27, para. 19; Neumeister judgment of 27 June l968, Series A no. 8, p. 41, para. 18; Ringeisen judgment of 16 July 1971, Series A no. 13, p. 45, para. 110). It is conceivable also that in civil matters the reasonable time may begin to run, in certain circumstances, even before the issue of the writ commencing proceedings before the court to which the plaintiff submits the dispute.