Is the European Court of Human Rights itself bound by Article 6 ECHR?

Abstract

In this paper the author looks for an answer to a very simple question: Is the European Court of Human Rights obliged to comply with the guarantees laid down in Article 6(1) of the ECHR for a fair trial? The quasi-unanimous answer of scholars and practicing lawyers is: yes, of course, obviously. The author begs to differ. He puts forward a number of reasons for this stance. Most importantly, Article 6 is to be found in the first section of the Convention, which is directed to the State-Parties to the Convention, not to the Court. It is Section II and the Rules of Court that deal with the establishment and workings of the Court. There one finds a number of guarantees, mentioned in Article 6 as developed in the abundant case-law of the Court, but not all. And why repeat in this section some elements if the Court is already bound by Article 6? Some rules in Section II even contradict the exigencies for a fair trial as laid down in Section I. There are furthermore practices of the Court that deny the requirements for a fair trial laid down in Article 6: most conspicuously the ‘within a reasonable time’ clause. Many judgments take more than ten years. As Article 6 is, according to the author, not applicable, there is no violation of that requirement. The practice is nevertheless regrettable, because the severity of the Court in judging the practices of national courts is in sharp contrast with the leniency in its own doings. Mind the gap! This difference harms the status and the legitimacy of the ECtHR. Some of the deviations from the fairness of the trial should be remedied by the State- Parties to the Convention. They are the stakeholders for this most valuable institution and should allow it the tools it needs to fulfill its task while living up to the standards of Article 6 of the Convention, applicable or not.