You have lost a case and what stays with you is not the outcome, but the way the court reached it.
Article 6 of the Convention protects the road, not the destination, and this is the whole of it. A judgment can be perfectly reasonable on the merits and still breach Article 6 ECHR, because the adversarial principle was ignored, because one party was never on an equal footing, because the decisive argument went unanswered, or because a procedural rule was applied so strictly that it closed the courtroom door.
I am Gianluca Piemonte, an Italian lawyer admitted to the Court of Cassation and entitled to represent applicants before the European Court of Human Rights. I have assisted a great many people who turned to Strasbourg after proceedings that ended without the minimum guarantees.
This article is about the 4 procedural defects that the Court examines under Article 6 ECHR, with the judgments that set the standard and the reasons those cases are hard to build. It is not a drafting manual.
- the surprise decision, taken on a point no party was invited to address
- the evidential imbalance between a citizen and a State that is both party and source of the proof
- the unanswered argument, where the reasons say nothing about the point that decided the case
- the formal refusal, where an appeal is declared inadmissible although it could be understood
Contents
What Article 6 ECHR requires
The text of Article 6 opens with the word that carries everything else, which is fairly. Around it the Court has built the adversarial principle, equality of arms, the right of access to a court, the duty to give reasons and the prohibition on using rules of form to empty a right of its substance.
The provision applies to 2 kinds of case, the determination of civil rights and obligations and the determination of a criminal charge. Both are autonomous notions, so what matters is the substance of the interest at stake and the severity of the sanction, not the label the national system puts on the procedure.
The second paragraph adds the presumption of innocence. The third lists the minimum rights of a person charged with an offence, from information about the accusation in a language he understands to the free assistance of an interpreter.
One point matters for anyone reading this from outside Italy. English is one of the 2 official languages of the Court, so the language of the procedure is not an obstacle, while the domestic stage of the case is governed by the law of the State concerned.
FURTHER READING: the structure of the Convention and the other rights it protects are set out in the article on the European Convention on Human Rights.
Article 6 ECHR and the surprise decision
The breach of Article 6 ECHR that comes up most often is not the one where a party was never heard. It is the one where the party was heard on everything except the point that decided the case.
The principle is simple to state. Each party must have the opportunity to know and comment on every piece of evidence and every argument the court intends to rely on, including a point the court raises of its own motion.
France was found in breach on exactly that in Clinique des Acacias and Others v. France, applications nos. 65399/01 and others, judgment of 13 October 2005, where the Court of Cassation decided on a ground it had raised itself without inviting the parties to address it first.
The criminal version of the same defect produced a judgment against Italy. In Drassich v. Italy, application no. 25575/04, judgment of 11 December 2007, the Court of Cassation reclassified the offence without the accused being able to defend himself on the new classification.
A further variant concerns evidence. In Lorefice v. Italy, application no. 63446/13, judgment of 29 June 2017, an acquittal was reversed on appeal on the strength of the same statements, without the witnesses being heard again.
WARNING: a breach of the adversarial principle does not win the case on its own. The Court looks at the proceedings as a whole and asks whether the defect affected their overall fairness, so a real flaw cured at a later stage will not produce a finding of violation.
Article 6 ECHR and equality of arms against the State
Equality of arms, in the reading Article 6 ECHR has received at Strasbourg, is not the formal symmetry of procedural powers. It is the practical opportunity to present a case without being placed at a substantial disadvantage compared with the opposing party.
The ground where it breaks most often is expert evidence, when the opposing party is a public authority and the expert opinion is produced inside that same authority.
In Placì v. Italy, application no. 48754/11, judgment of 21 January 2014, a conscript challenged a finding on his fitness for service. The medical board that gave the decisive opinion was composed of members of the respondent administration, and its conclusions were adopted in full by the domestic court.
CITATION — European Court of Human Rights, Placì v. Italy, application no. 48754/11, judgment of 21 January 2014, § 79, authentic English text
«the applicant had legitimate reasons to fear that the Medical Board had not acted with the appropriate neutrality in the proceedings before the CS. It further transpires that, as a result of the Board’s composition, procedural position and role in the proceedings before the CS the applicant was not on a par with his adversary, the State, as he was required to be in accordance with the principle of equality of arms»
What makes the passage useful is that it does not stop at the expert. It censures the wholesale adoption of the expert’s conclusions by the court, which is what happens in a large number of cases where a court-appointed report becomes the judgment.
The difficulty is evidential. You have to show that the imbalance was structural, not that the expert was wrong, because the European Court does not review the merits of an expert opinion.
Retrospective legislation in pending proceedings
There is a way of destroying the equality of arms guaranteed by Article 6 ECHR in which no judge does anything irregular. The legislature passes a retrospective provision while proceedings are pending, and the State, which is a party to those proceedings, writes the rule by which they will be decided.
The leading case is Stran Greek Refineries and Stratis Andreadis v. Greece, application no. 13427/87, judgment of 9 December 1994, where the Court found a violation of Article 6 and of Article 1 of Protocol no. 1.
Italy has produced a consistent line on the same technique.
- Maggio and Others v. Italy, application no. 46286/09, judgment of 31 May 2011, on a retrospective rule affecting pending pension litigation
- Agrati and Others v. Italy, application no. 43549/08, judgment of 7 June 2011, on the same technique in public employment litigation
- Arras and Others v. Italy, application no. 17972/07, judgment of 14 February 2012, with a violation on the equality of arms limb
- Casacchia and Others v. Italy, application no. 23658/07, and Natale and Others v. Italy, application no. 19264/07, both of 15 October 2013
The test is narrower than it looks. Retrospective legislation is not prohibited as such, it is prohibited where there is no compelling general-interest ground, and budgetary reasons on their own do not amount to one.
The weak point has to be said. The Court has also gone the other way, where it accepted that the intervention corrected a distortion of the system, so the favourable precedent does not carry a case by itself.
Article 6 ECHR and the argument that went unanswered
A court must give reasons, and the reasons must show that the decisive submission was actually examined. Silence on the point that would have changed the outcome is where Article 6 ECHR bites.
Spain lost twice on the same day on this ground. In Ruiz Torija v. Spain, application no. 18390/91, and Hiro Balani v. Spain, application no. 18064/91, both decided on 9 December 1994, the domestic court had ignored a submission which, had it been upheld, would have changed the result.
WARNING: Article 6 ECHR does not give a right to a detailed answer on every argument. The Court requires that the decisive one be addressed, and the selection of what is decisive is largely left to the national judge.
There is a practical obstacle that varies from State to State. Most systems filter appeals on points of law, and in several of them the defect in the reasons has been narrowed to specific statutory grounds, so the complaint may have to be built at Strasbourg on what the domestic route no longer allows you to raise at home.
Excessive formalism and the Succi case
Excessive formalism is the most insidious defect under Article 6 ECHR, because it does not come from an unfair rule. It comes from the way a reasonable rule is applied.
The framework was set by the Grand Chamber in Zubac v. Croatia, application no. 40160/12, judgment of 5 April 2018, where the Court found no violation and, in doing so, spelled out how a restriction on access to a supreme court is to be assessed.
Italy then lost on the same terrain. Its Court of Cassation requires an appeal on points of law to be self-contained, so that the court can follow the case and the grounds without going through the file, a requirement now written into the Code of Civil Procedure.
The question reached Strasbourg in Succi and Others v. Italy, applications nos. 55064/11, 37781/13 and 26049/14, judgment of 28 October 2021, final on 28 January 2022. Three applicants, three appeals declared inadmissible, one favourable outcome.
CITATION — European Court of Human Rights, Succi and Others v. Italy, applications nos. 55064/11, 37781/13 and 26049/14, judgment of 28 October 2021, § 92, unofficial translation from the authentic French text
«even assuming that the Court of Cassation’s judgment refers correctly to the applicant’s appeal, in holding that the particulars provided were insufficient the supreme court displayed an excessive formalism which cannot be justified in the light of the purpose of the principle that an appeal on points of law must be self-contained, and therefore of the aim pursued, namely legal certainty and the proper administration of justice»
For the other 2 applicants the same judgment found no violation. That is the figure worth keeping, because it says that excessive formalism is not inferred from the inadmissibility decision itself.
The same direction is taken in Trevisanato v. Italy, application no. 32610/07, judgment of 15 September 2016, where the Court found no breach although the appeal had been declared inadmissible for a defect in the way it was drafted.
The practical consequence is uncomfortable. You have to show that the appeal, as it was written, still allowed the court to understand the subject matter, the course of the case and the scope of the grounds, and that the inadmissibility decision therefore struck at the substance of the right to a court.
FURTHER READING: an Italy specific example of how the Court reasons on a different provision is set out in the article on Article 8 ECHR and the judgments against Italy.
What Article 6 ECHR cannot be used for
Anyone invoking Article 6 ECHR has to reckon with a structural limit. The European Court is not a fourth instance. It does not re-examine the facts, it does not reassess the evidence, and it does not say whether the national court applied its own law correctly.
Some complaints therefore stay outside Article 6 ECHR, however well founded they may be on the merits.
- the assessment of evidence, where a statement or a document was read differently
- the interpretation of domestic law that the applicant considers wrong
- the amount of damages or the severity of a sentence
- the appearance of bias, where no objective element is identified
Whole fields are outside as well. Tax disputes were kept out of the civil limb by the Grand Chamber in Ferrazzini v. Italy, application no. 44759/98, of 12 July 2001, and expulsion proceedings were excluded in Maaouia v. France, application no. 39652/98, of 5 October 2000.
WARNING: the line between a procedural defect and disagreement on the merits decides the fate of the application. A submission that retells the case and concludes that the result was unjust falls outside Article 6 ECHR, even where the proceedings did contain a real flaw that nobody managed to isolate.
FURTHER READING: the procedure, the time-limit and the form of the application are covered in the guide on how to appeal to the European Court of Human Rights and in the article on the ECHR application form.
Conclusions
This article covered what Article 6 ECHR requires beyond speed, how the adversarial principle is breached by a surprise decision, when equality of arms breaks because the State is both party and source of the evidence, what happens when retrospective legislation enters pending proceedings, why silence on a decisive argument can amount to a violation, what the Court said about excessive formalism in the Succi case, and which complaints fall outside the provision altogether.
Four points emerge from the material above.
- Article 6 ECHR protects the conduct of the proceedings and not their outcome, so a judgment that is wrong on the merits is not for that reason contrary to the Convention
- a breach of the adversarial principle counts where it affected the overall fairness, and it has to be pleaded by showing which defence was prevented
- equality of arms breaks above all where the technical evidence is produced inside the authority that is the opposing party
- excessive formalism is not inferred from the inadmissibility decision itself, as the 2 unsuccessful applicants in Succi show
What you will not find above is the way to build the complaint. That is deliberate.
On defects of this kind the outcome depends on isolating the exact point where the proceedings broke down and on the judgments that support that reconstruction. Those are file-specific choices, not choices a template can make for you.
The proceedings before the European Court are conducted in writing, so you do not need to come to our office. We assist clients resident in any European State.
If something in your case did not work the way the Convention requires, write to me about it. The instruction runs in 2 separate stages, and you decide on the second one after reading the first.
In the first stage I read your final domestic decision and assess the grounds for an application. I check whether the 4-month time-limit is still open, whether domestic remedies have been exhausted, whether the Convention complaint was raised before the national courts and above all whether the violation occurred in your own case, comparing your situation with the ones the European Court has already decided. I also look at whether arguments of international law can bring your case before an international judge.
In the second stage, if the grounds are there, you can instruct me for the defence before the European Court, including any translation of the documents.
You can give me the whole mandate, or work with 2 lawyers, keeping your own counsel on the domestic side while I take the case to Strasbourg. The same applies to lawyers who want to be assisted on a client’s application.
After you contact me I will send you a written quote with no obligation. My quotes are clear and transparent.
Write to supporto@studiopiemonte.com or fill in the form on the CONTACT US page. I have already helped a great many people assert their rights after an unfair trial, and I will be glad to help you too.
