Weighing Overall Fairness: A Critique of Balancing under the Criminal Limb of Article 6 of the European Convention on Human Rights

Abstract

Abstract This article focuses on a specific standard by which the right to a fair trial is interpreted in the context of the right to legal assistance and the right to examine witnesses under Article 6 ECHR, the standard of overall fairness. The first section argues that the standard of overall fairness undermines the rule of law and represents a problematic conception of the right to a fair trial. The second section links overall fairness to the Court’s wider methodological approach to adjudication, namely ad hoc balancing, and establishes that ad hoc balancing is vulnerable to similar critiques. The third section advocates for a legal doctrine which rejects the theoretical assumptions of balancing and sets the basis for a reconceptualisation of the European Court of Human Rights’ approach to methodology and to the grant of remedies.