Happy Anniversary To A Huge Fair Trials Case
Feature

Happy Anniversary To A Huge Fair Trials Case

By Corallina Lopez Curzi, Writer 21 Feb 2017
Justice

The right to a fair trial is one of the cornerstones of a just society. In a landmark judgment 45 years ago today (February 21, 2020), the European Court of Human Rights said that the right to a fair trial applies even before a trial ‘officially’ begins, which has since allowed many vulnerable people access to the courts. 

The many elements of the right to a fair trial

The right to a fair trial is set out at Article 6 of the European Convention on Human Rights (ECHR). Its first sentence says:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

The right includes the presumption of innocence, the independence and impartiality of judges, and the concept of open justice (that legal proceedings generally take place in public). It means that people facing criminal charges are afforded a fair chance to defend themselves and have access to a lawyer. And crucially, it means that people must be able to exercise their right to access justice by going to court.

In its first-ever judgement against the United Kingdom, the European Court of Human Rights (the Court) had an opportunity to say that access to justice is available to everyone, even prisoners.

The Golder case

Sidney Golder had been sentenced to 15 years imprisonment after being convicted of committing a violent robbery.  While he was serving his sentence in a prison on the Isle of Wight, a riot broke out in a recreation area of the prison where he happened to be. Golder, who argued he had not been involved at all in the events, was accused by one of the injured prison officers for being one his assailants and, even though no charges were ever brought against him, that allegation remained on his prison record (affecting his chances to access parole).

Golder wanted to contact a solicitor with a view to taking civil action for libel against the prison officer but was prevented from doing so by the Home Secretary.  The Court was tasked with ruling on whether the right to a fair trial applied to people seeking access to the courts (that is, before any legal proceedings have commenced).

In a crucial judgment, the European Court of Human Rights said that Article 6 applied to people seeking access to the courts. Because the Home Secretary had effectively prevented Golder from accessing the courts, the UK had violated his right to access to justice under Article 6 of the ECHR

The Golder case shows that the state has a positive duty to ensure that every person can bring a case before a judge – as “one can scarcely conceive of the rule of law without there being a possibility of having access to the courts”. It also demonstrates the importance of protecting the fundamental human rights of prisoners and people involved in criminal proceedings.

Protecting the rights of suspects and accused persons

Article 6 ECHR says that anyone charged of a criminal offence has the right to a lawyer and that the state must pay for this ‘when the interests of justice so require‘. It is important that these rights apply in the pre-trial stage in addition to the main trial itself since people in police custody and pre-trial detention can be very vulnerable. 

The right to pre-trial access to a lawyer is not explicitly set out in the ECHR and has been progressively carved out through the Court’s caselaw. The starting point was the Imbrioscia v. Switzerland case back in 1993 but 25 years passed before the breakthrough judgement of the Salduz v. Turkey case. In that case, the Court said that access to a lawyer should be provided starting from the moment of the first interrogation of the suspect by police (if not even earlier, as argued by some of the judges).

In 2013, the European Parliament approved its directive on the right to access to a lawyer, which states that suspects and accused persons in the European Union must have access to a lawyer in the earliest stages of proceedings (that is, before they undergo police questioning or before an investigation against them begins). 

The Golder judgment has ensured that many of society’s most vulnerable people have access to justice by exercising their right to a fair trial. 

To read more about the right to a fair trial: 

Gold leaf © Tim Denholm, used under the Creative Commons Attribution 4.0 International license.

About The Author

Corallina Lopez Curzi Writer

Corallina holds a LLM (Roma3) and a MA in Human Rights (UCL). She has worked in NGOs and international organizations, focusing on migrant and refugee rights, as well as on foreigners in the criminal system and in immigration detention. All her views here are personal.

Corallina holds a LLM (Roma3) and a MA in Human Rights (UCL). She has worked in NGOs and international organizations, focusing on migrant and refugee rights, as well as on foreigners in the criminal system and in immigration detention. All her views here are personal.