Right to representation at domestic tribunal - common law and ECHR art Essay

Right to representation at domestic tribunal - common law and ECHR art 6 - Essay Example Under Article 6 of the ECHR, all have the right to a fair and public trial in cases that are both civil and criminal in nature, â€Å"within reasonable amount of time†, and â€Å"by an independent and impartial tribunal established by law†. Moreover, for those who are charged with the commission of a crime, Article 6 contains a provision for a defendant to choose legal counsel or to have one given to the defendant for free if defendant is unable to provide the financial means to procure his own counsel, and â€Å"when the interests of justice so require†. The defense can also be undertaken by the defendant on his own capacity and in his own person 1 That said, Article 6 does not contain an express provision for the right to representation for civil cases. 2 On the other hand, there are cases where the European Court of Human Rights has ruled that in some cases, as when the litigation involves complexities that the defendant is unable to understand completely to t he point of being able to ably defend himself or herself and no representation was given to the defendant, that act of not providing representation is deemed to have been a violation of Article 6. . The findings of the court with regard to the proper interpretation of Article 6 of the ECHR is that legal aid must be given even in civil cases, where â€Å"legal representation is compulsory†, as when the case is complex or the nature of the case itself demands legal representation, or when the defendant has limited abilities to undertake his or her own defense. 3 Moreover, with regard to the coverage of the right to a fair trial, Article 6 expressly includes determining the rights and obligations of people from a civil point of view as within the coverage of the Article, so that areas such as the rights related to property, right to undertake commercial acts, and others are deemed to be included within the scope of the Article. 4The rest of the paper continues this evaluation of the extent of the right to legal counsel in tribunals, taking off from this Introduction and the discussion on Article 6 of the ECHR to consider the common law basis, extent and boundaries of legal representation in domestic tribunals as reflected in common law. 5 II. Discussion In Regina v. Home Secretary, ex parte Tarrant and others, 1985 there is common law precedent with regard to considering the merits of a case relating to the right to counsel for a person already in prison, but was to face possible disciplinary sanction within the prison system. That proceeding to determine whether sanctions were to be meted to the prisoner for disciplinary reasons tackled the reasons for a prisoner in such circumstances being provided the proper access to legal counsel/representation. Those considerations were the gravity of the charge as well as the gravity of the potential sanctions or penalties; whether legal points were to surface and the likelihood of that surfacing; the prisonerâ€⠄¢s own capacity for self-representation; difficulties relating to procedure and how well the prisoner is to handle that; the mandate that the charge had to be determined with reasonable swiftness; and the mandate for fairness to rule the relationship between those who are imprisoned and the staff in charge of overseeing them. The case demonstrates common law bases for determining the conditions wherein the right to counsel is acknowledged, where the prisoner in question is to face a tribunal within the prison system. 6 Elsewhere we see that the right to representation is essential to a man who is untrained in the ways of the law and of the proceedings to which he may be