The Disappearing ‘Minimum Rights’ of Article 6 ECHR: the Unfortunate Legacy of Ibrahim and Beuze

Abstract

Abstract This article critiques the European Court of Human Rights’ recent extensive case law on the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR), and particularly the right to legal assistance in criminal trials. The article examines the significant and ongoing impact of the judgments in Ibrahim (2016) and Beuze (2018) and argues that the recent case law reflects buyer’s remorse on the part of the Court for its landmark judgment in Salduz (2008). Article 6 is among the most heavily litigated provisions of the ECHR, and this article is the first extended scholarly analysis of the post-Beuze case law. The article identifies two interrelated trends in the most recent case law: first, the Court taking a number of analytical steps that allow it to overlook the text of Article 6(3) in favour of an impressionistic assessment of the overall fairness of the proceedings; and, second, the Court providing Governments with multiple opportunities to advance public interest justification arguments despite continued pronouncements that Article 6 is an unqualified right. The article suggests that the jurisprudence is weakening the Article 6 guarantees.