Determination of civil rights and obligations The determination of a person’s civil rights and obligations applies to private rights owed to individuals personally, and not to purely public rights owed to society at large. So, for example, the following areas are generally considered to be governed by the Article 6 right to a fair trial: • property rights; • right to practise a profession; • family rights; • right to compensation; • right to engage in commercial activities; • some employment decisions; • control orders; • anti-social behaviour orders etc. But the following areas are not considered to be ‘civil’ rights and therefore do not fall within Article 6: • entry or removal of immigrants; • tax obligations; • right to stand for public office. Criminal charges Whether proceedings are criminal, and so governed by Article 6, depends on whether the offence is categorised as being criminal (although this is not determinative); the nature of the offence; and the type of penalty applicable. Right to be presumed innocent until proven guilty Article 6(2) concerns the right of every person charged with a criminal offence to be presumed innocent until proven guilty according to law. Provisions which require defendants to prove elements of their defence (reverse onus provisions) may breach this right, particularly if a legal burden of proof is placed on the defendant (requiring them to prove that the case against them is not true). Minimum rights in criminal trials Article 6(3) also guarantees the following minimum rights that apply in criminal trials: • the right for an accused to be promptly informed of the accusation against him or her – this must be in a language which he or she understands and the charge must be detailed and adequately precise; • the right to have enough time and facilities to prepare a defence; • the right to legal representation, including the right to either defend oneself in person or through legal assistance chosen by the accused; for legal aid to be provided if a person cannot afford legal representation; and when the interests of justice require it; • the right to examine witnesses against an accused and for an accused to present witnesses for their defence – this right does not prevent vulnerable witnesses from giving evidence in alternative ways, either anonymously or via video-link etc., as long as the entirety of the evidence against the accused is not presented anonymously; • the right for an accused to have the free assistance of an interpreter if he or she cannot understand the language used in court.
Posted on: Sun, 03 Aug 2014 23:40:32 +0000
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