The majority of Convention violations that the Court finds today are excessive delays, in violation of the "reasonable time" requirement, in civil and criminal proceedings before national courts, mostly in Italy and France. Under the "independent tribunal" requirement, the Court has ruled that military judges in Turkish state security courts are incompatible with Article 6. Another significant set of violations concerns the "confrontation clause" of Article 6. In this respect, problems of compliance with Article 6 may arise when national laws allow the use in evidence of the testimonies of absent, anonymous and vulnerable witnesses.
Cases
Colozza v Italy – "When domestic law permits a trial to be held notwithstanding the absence of a person 'charged with a criminal offence' who is in Mr. Colozza's position, that person should, once he becomes aware of the proceedings, be able to obtain, from a court which has heard him, a fresh determination of the merits of the charge."
Heaney and McGuinness v. Ireland – Case involving two Irish citizens imprisoned for choosing to remain silent and to use their rights not to incriminate themselves when suspected of an IRA-related terrorist act. "The Court... finds that the security and public order concerns relied on by the Government cannot justify a provision which extinguishes the very essence of the applicants' rights to silence and against self-incrimination guaranteed by Article 6 § 1 of the Convention."
Perez v France – "the right to a fair trial holds so prominent a place in a democratic society that there can be no justification for interpreting Article 6 § 1 of the Convention restrictively"
García Ruiz v Spain – The Court applied the fourth-instance doctrine, stating that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention.
Van Kück v Germany – the court took the approach of considering the merits of the case and in finding a breach based on the fact that the German courts had failed to follow the Strasbourg court's approach to medical necessity on hormone replacement therapy and gender reassignment surgery. This was in line with and an expansion of the earlier ruling in Camilleri v Malta in which the courts were more willing to consider the merits of the court's decision which compromised fairness, stating that the decision had been "arbitrary or manifestly unreasonable".
Khamidov v Russia – the court considered "abundant evidence" contradicting the finding of the national court, with the result that "the unreasonableness of this conclusion is so striking and palpable on the face of it" that the decision was "grossly arbitrary". This once again showed the court's changing stance in considering the actual merits of a case. This therefore illustrates the court is developing an appellate function as opposed to a review function.
The Convention applies to contracting parties only; however, in cases where a contracting party court has to confirm the ruling of a non-contracting state, they retain a duty to act within the confines of article 6. Such was the case in Pellegrini v Italy, a case concerning the application of a Vatican ecclesiastical court ruling on a divorce case. In the determination of criminal charges, Engel v Netherlands set out three criteria to determine meaning of "criminal": a) the classification of the offense in the law of the respondent state, b) the nature of the offence, c) the possible punishment. Funke v France states that if the contracting state classifies the act as criminal, then it is automatically so for the purposes of article 6.
