‘It is not its task to act as a Court of fourth instance’ : the case of the ECtHR

Abstract

This article discusses the so-called fourth instance doctrine under Article 6 of the European Convention on Human Rights, focusing in particular on its role in fair trial cases. It attempts to determine when the European Court of Human Rights has given weight to the fourth instance doctrine. Owing to the dynamic and free-range nature of the Court’s interpretative methods, challenges are often mounted on the basis of the fourth instance doctrine and the interpretation of Article 6 (fair trial). This article examines the case law, amounting to forty-four cases, on the provision of fair trials. It divides the role of the fourth instance doctrine into four distinct categories: (1) ‘clear fourth instance nature’; (2) ‘length of proceedings’; (3) ‘balancing approach’; and (4) ‘disregard of fourth instance approach’. Lastly, the article evaluates whether or not the application of strict fourth instance doctrine arguments in fair trial cases can be justified.