Article 6 of the European Convention on Human Rights (1950) (“ECHR”) guarantees the right to a fair and public hearing, within a reasonable time, by an independent and impartial tribunal established by law, in the determination of an individual’s civil rights and obligations or of any criminal charge against him (or her). The European Court of Human Rights (EctHR), located in Strasbourg, decides on the application of Article 6 in the domestic jurisdictions of each Council of Europe Member State. Previously, it was the European Commission of Human Rights which acted as the first tier for complaints, however, it was abolished once Protocol No.11 to the ECHR came into force in 1998.

Article 6 of the ECHR has been interpreted in a broad manner, the reasoning of which was explained by the EctHR in the case of Delcourt v. Belgium (1970), where it was stated that “in a democratic society within the meaning of the Convention, the right to a fair administration of justice hold such a prominent place that a restrictive interpretation of Article 6 (1) would not correspond to the aim and purpose of that provision.”  Above all, the EctHR has repeatedly stated that the rights secured by the ECHR must be "rights that are practical and effective and not theoretical and illusory."

The guarantees afforded by Article 6 cover not only the court proceedings themselves, but also all the procedural events which both precede and follow them. In this context, it may be said that Articles 3 and Articles 5 of the ECHR are related to Article 6 of the ECHR. The prohibition of torture proscribed by Article 3 extends equally over pre-trial detention, arrest and questioning and if contravened may have an adverse effect on the fairness of the trial guaranteed by Article 6 (for example, where evidence is adduced by way of torture). Whereas, Article 5 (3) of the ECHR, states that anyone arrested or detained in accordance with the provision of the article, must be brought promptly before a judicial authority, and entitled to a trial within a reasonable time, failing which, such person must be released, thereby reaffirming the principle of access to court and access to justice which is a fundamental notion underpinning the operation of Article 6 ECHR. Article 5 (4) establishes the right to challenge the detention in legal proceedings, which legal challenge would also be covered by the guarantees provided in Article 6 ECHR.

Further, in its judgement in the case of Airey v Ireland (1979), which concerned an alleged violation of Article 6, the EctHR was of the opinion that the prohibition of discrimination established in Article 14 ECHR is also applicable to Article 6, as to all other articles in the ECHR, by virtue of the fact that it (Art.14) has no independent existence and constitutes one particular element (of non-discrimination) of each of the rights safeguarded by the ECHR.

Article 6 does not provide the right to an appeal. For criminal cases, this right is provided by Article 2 of Protocol No.7 to the ECHR. However, the guarantees afforded by Article 6, do cover and apply to appeal proceedings.

In determining the application of Article 6 it is first required to define what is meant by civil rights or obligations and criminal charge.

As regards civil rights and obligations the EctHR has found this to denote all rights of private persons in their relations, that is, in contract law, commercial law, the law of tort, family law, employment law and property law. Regarding cases whether the parties are on the one side the individual and on the other, the State, definition of the term “civil rights and obligations” becomes more complex. The EctHR has concluded that a number of such rights and obligations fit within the definition of “civil”. For instance, in the case of property issues such as expropriation, consolidation and planning proceedings. Furthermore, cases such as Konig v. Germany (1978), have shown that proceedings on the right to practice a profession and the right to commercial activity are also within the ambit of Article 6 of the EctHR. Claims not falling under the protection of Article 6, are those concerning taxation issues, matters of immigration and nationality, liability for military service and cases concerning the reporting of court proceedings.

As regards the definition of “criminal charge”, the word “charge” is an autonomous concept. The meaning of the word “charge” was established in the case of Deweer v. Belgium (1980), where the EctHR stated that the word should be given a substantive rather than formal meaning and ought be defined as “the official notification given to an individual by the competent authority of an allegation that he (or she) has committed a criminal offence…” or where, “the situation of the suspect has been substantially affected”. The importance of pinpointing the exact moment of when a person is “charged” is pivotal, as this is the moment in time from which the protection offered by Article 6 ECHR, begins (pending the fulfilment of all other criterions). Equally, in seeking the protective umbrella of Article 6, the charge must be deemed “criminal”. If the charge is classified as a criminal act in the domestic jurisdiction in question, Article 6 applies automatically. If however, the act in question is not classified in domestic law as “criminal” this does not unconditionally exclude it from within the purview of Article 6. The definition of “criminal” was deliberated by the EctHR in the case of Engel and others v. the Netherlands (1976), where the EctHR concluded if the domestic classification of an act as being not “criminal” (and for example, solely illegal), was decisive for the application of Article 6 , then member States could evade the application of the fair trial guarantee by simply de-criminalizing offences. The criterion by which the “criminality” of the act must be assessed is by the scope of the violated norm and the purpose of the penalty.

It should be noted however, that as is the case for all complaints submitted to the EctHR on violations of the ECHR, and as in accordance with Article 34 of the ECHR a complaint will only be deemed admissible when all domestic remedies have been exhausted. The greater majority of cases on the breach of Article 6 ECHR, will have had to have gone through the highest domestic court before reaching the EctHR and for this reason the EctHR will oftentimes find that Article 6 has not been violated in view of the fact that the higher domestic courts were able to rectify the errors of the lower court and that therefore, the proceedings “taken as a whole” were fair.

The Committee of Minister of the Council of Europe has continually and extensively provided member States with Recommendations as to measure for improving the operation of the civil and criminal justice systems within domestic jurisdictions. Additionally, for matters of civil law, the European Agreement on the Transmission of Applications for Legal Aid (1977) has come into force as well as more recently, the Additional Protocol to the European Agreement on the Transmission of Applications for Legal Aid (2001).