Civil Decision [ECHR]

Table of Contents

Public judgement

The judgement in a civil and criminal matter should be pronounced in public. This implies that it be made available and not necessarily that it be made in open court or read out.

Judgements may be redacted or withheld to the same extent that parties may be excluded from proceedings in cases such as child protection interests of juvenile’s private life or where other special considerations apply. However even in these cases parties with an interest should with the consent of court if necessary be able to obtain copies of the judgement or have access to the orders.

In Raza v Bulgaria it was stated that even in undisputable national security cases such as those relating to terrorist activities, some states have opted to classify only those parts of the judicial decision whose disclosure would compromise national security or the safety of others, thus illustrating that there existed techniques which could accommodate legitimate security concerns without fully negating fundamental procedural guarantees such as the publicity of judicial decisions

The public character of proceedings before judicial bodies protects litigants against the administration of justice in secret with no public scrutiny and constitutes a basic safeguard against arbitrariness (Fazliyski v. Bulgaria, 2013, § 69, concerning a case classified secret – violation). It is also a means of maintaining confidence in the courts (Pretto and Others v. Italy, 1983, § 21).

Even in indisputable national-security cases, such as those relating to terrorist activities, some States have opted to classify only those parts of the judicial decisions whose disclosure would compromise national security or the safety of others, thus illustrating that there exist techniques which could accommodate legitimate security concerns without fully negating fundamental procedural guarantees such as the publicity of judicial decisions (Fazliyski v. Bulgaria, 2013, § 69).

Pronounced in Public

Article 6 § 1 states “Judgment shall be pronounced publicly”, which would seem to suggest that reading out in open court is required. The Court has found, however, that “other means of rendering a judgment public” may also be compatible with Article 6 § 1 (Straume v. Latvia, 2022, § 126; Moser v. Austria, 2006, § 101).

In order to determine whether the forms of publicity provided for under domestic law are compatible with the requirement for judgments to be pronounced publicly within the meaning of Article 6 § 1, “in each case the form of publicity to be given to the judgment under the domestic law … must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6 § 1” (Pretto and Others v. Italy, 1983, § 26; Axen v. Germany, 1983, § 31). The object pursued by Article 6 § 1 in this context – namely, to ensure scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial – must have been achieved during the course of the proceedings, which must be taken as a whole (ibid., § 32, and Straume v. Latvia, 2022, § 133; see also, mutatis mutandis, in relation to expulsion and national security, Razav. Bulgaria, 2010, § 53).

Where only the operative part of the judgment is read out in public: it must be ascertained whether the public had access by other means to the reasoned judgment which was not read out and, if so, the forms of publicity used must be examined in order to subject the judgment to public scrutiny (Ryakib Biryukov v. Russia, 2008, §§ 38-46 and case-law references cited in §§ 33-36). As the reasons which would have made it possible to understand why the applicant’s claims had been rejected were inaccessible to the public, the object pursued by Article 6 § 1 was not achieved (ibid., § 45; see also Straume v. Latvia, 2022, §§ 130-133).

Alternative Publicity

Where judgment is not pronounced publicly it must be ascertained whether sufficient publicity was achieved by other means. In the following examples sufficient publicity was achieved by means other than public pronouncement:

higher courts which did not publicly pronounce decisions rejecting appeals on points of law: in order to determine whether the manner in which a Court of Cassation delivered its judgment met the requirements of Article 6 § 1, account must be taken of the entirety of the proceedings conducted in the domestic legal order and of the role of that court therein (Pretto and Others v. Italy, 1983, § 27).In finding no violation of Article 6 § 1 the Court paid particular attention to the stage of the procedure and to the scrutiny effected by these courts – which was limited to points of law – and to the judgments they delivered, upholding the decisions of the lower courts without any change to the consequences for the applicants. In the light of these considerations it found that the requirement for public pronouncement had been complied with where, by being deposited in the court registry, the full text of the judgment had been made available to everyone (ibid., §§ 27-28) in addition to its publication in the Official Gazette (Straume v. Latvia, 2022, § 131 ; Ernst and Others v. Belgium, 2003, §§ 69-70), or where a judgmentupholding that of a lower court which itself had been pronounced publicly had been given without a hearing (Axen v. Germany, 1983, § 32).
Trial court: the Court found no violation in a case where an appellate court publicly delivered a judgment summarising and upholding the decision of a first-instance court which had held a hearing but had not delivered its judgment in public (Lamanna v. Austria, 2001, §§ 33-34).
ases concerning the residence of children: while the domestic authorities are justified in conducting these proceedings in chambers in order to protect the privacy of the children and the parties and to avoid prejudicing the interests of justice, and to pronounce the judgment in public would, to a large extent, frustrate these aims, the requirement under Article 6 § 1 concerning the public pronouncement of judgments is satisfied where anyone who can establish an interest may consult or obtain a copy of the full text of the decisions, those of special interest being routinely published, thereby enabling the public to study the manner in which the courts generally approach such cases and the principles applied in deciding them (B. and P. v. the United Kingdom, 2001, § 47).

Sample Breaches

In the following cases, failure to pronounce the judgment publicly led to the finding of a violation:

In a child residence case between a parent and a public institution: giving persons who established a legal interest in the case access to the file and publishing decisions of special interest (mostly of the appellate courts or the Supreme Court) did not suffice to comply with the requirements of Article 6 § 1 concerning publicity (Moser v. Austria, 2006, §§ 102-03).
When courts of first and second instance examined in chambers a request for compensation for detention without their decisions being pronounced publicly or publicity being sufficiently ensured by other means (Werner v. Austria, 1997, §§ 56-60).
Where a claim for damages was examined with the public excluded and the judgments were made available to the parties after a certain period of time without being made accessible to the public in some form – notification of the parties to the proceedings alone not being sufficient (Vasil Vasilev v. Bulgaria, 2021, §§ 116-117).
Where the first-instance judgment was not pronounced publicly, only the operative part of the appellate court’s judgment was read out in public and no public hearing was held, with the result that the proceedings had not been subject to sufficient public scrutiny – even if it was possible to ask for an anonymised copy of the judgment to be provided at the court’s discretion (Straume v. Latvia, 2022, §§ 130-133, and case-law references cited).

Within Reasonable Time

Judgement must be given within a reasonable time. In Frydlender v France, the court reiterated that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria.

the complexity of the case
the conduct of the applicant and of the relevant authorities and
what was at stake for the applicant in the dispute.

The court reiterated that it is for the states to organise their legal systems in such a way that the courts can guarantee everyone the right to a final decision within a reasonable time in the determination of civil rights and obligations. For this purpose, time is measured from the commencement of proceedings whether in civil or in criminal matters. It runs until the determination of the matter including appeals and post-hearing determinations.

In Scordino v Italy, the court indicated that national courts should adopt steps to deal with delays in judicial proceedings. States should take systematic steps including expedition of proceedings and compensation for delays. The court indicated that it was not necessary to have both compensation and provision for expedition.

Reasoned Decision

Presumptively Article 6.1 requires a reasoned decision on the evidence. This is an important part of the fair hearing. It allows the person concerned to consider the reasons on which the decision was made and whether the court has taken proper account of critical matters. It may be essential to an appeal.

In Tazquet v Belgium, the European court confirmed that juries are not required to give detailed reasons for their decision. What is required that it is possible to understand the verdict given. The judge should give directions to the jury as to the matters which they decide.

Garou v Greece confirmed that the nature and extent of the reasons required is dependent on the nature of the court and national practice.

The guarantees enshrined in Article 6 § 1 include the obligation for courts to give sufficient reasons for their decisions (H. v. Belgium, 1987, § 53, and for a summary of the principles, Zayidov
v. Azerbaijan (no. 2), 2022, § 91). A reasoned decision shows the parties that their case has truly been heard, and thus contributes to a greater acceptance of the decision (Magnin v. France (dec.), 2012,§ 29).

Although a domestic court has a certain margin of appreciation when choosing arguments and admitting evidence, it is obliged to justify its activities by giving reasons for its decisions (Suominen v. Finland, 2003, § 36; Carmel Saliba v. Malta, 2016, §§ 73 and 79).

The reasons given must be such as to enable the parties to make effective use of any existing right of appeal (Hirvisaari v. Finland, 2001, § 30 in fine).

Extent of Reasons

Article 6 § 1 obliges courts to give reasons for their decisions, but cannot be understood as requiring a detailed answer to every argument (García Ruiz v. Spain [GC], 1999, § 26; Perez v. France [GC], 2004, § 81; Van de Hurk v. the Netherlands, 1994, § 61; Jahnke and Lenoble v. France (dec.), 2000).

The extent to which this duty to give reasons applies may vary according to the nature of the decision (Ruiz Torija v. Spain, 1994, § 29; Hiro Balani v. Spain, 1994, § 27) and can only be determined in the light of the circumstances of the case: it is necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments (Ruiz Torija v. Spain, 1994, § 29; Hiro Balani v. Spain, 1994,§ 27).

As to whether the Court of Cassation did not examine a ground of appeal raised by the applicant, or whether it assessed the relevance of the ground of appeal before deciding to reject it by means of brief reasoning, see Tourisme d’affaires v. France, 2012, §§ 28 et seq.; and also Higgins and Others v. France, 1998, § 43. In a case where a court had not explicitly examined the applicant’s complaint, the Court was able to accept that their silence on that complaint could reasonably be construed as an implicit rejection in the circumstances of the case (Čivinskaitė v. Lithuania, 2020, §§ 142-144). Where the case concerns national security, the secret nature of the documents concerned may limit the scope of the obligation to give reasons for judicial decisions (compare Regner v. the Czech Republic [GC], 2017, § 158 in fine, and, mutatis mutandis, Šeks v. Croatia, 2022, § 71).

However, where a party’s submission is decisive for the outcome of the proceedings, it requires a specific and express reply (Ruiz Torija v. Spain, 1994, § 30; Hiro Balani v. Spain, 1994, § 28; and compare Petrović and Others v. Montenegro, 2018, § 43).

The courts are therefore required to examine:

he litigants’ main arguments (Buzescu v. Romania, 2005, § 67; Donadze v. Georgia, 2006,§ 35); specific, pertinent and important points (Mont Blanc Trading Ltd and Antares Titanium Trading Ltd v. Ukraine, 2021, §§ 82 and 84).
pleas concerning the rights and freedoms guaranteed by the Convention and its Protocols: the national courts are required to examine these with particular rigour and care (Fabris v. France [GC], 2013, § 72 in fine; Wagner and J.M.W.L. v. Luxembourg, 2007, § 96). This is a consequence of the subsidiarity principle.

Refusing Leave / Dismiss Appeal

Article 6 § 1 does not require a supreme court to give more detailed reasoning when it simply applies a specific legal provision to dismiss an appeal on points of law as having no prospects of success, without further explanation (Gorou v. Greece (no. 2) [GC], 2009, § 41; Burg and Others v. France (dec.), 2003).

Similarly, in the case of an application for leave to appeal, which is the precondition for a hearing of the claims by the superior court and the eventual issuing of a judgment, Article 6 § 1 cannot beinterpreted as requiring that the rejection of leave be itself subject to a requirement to give detailed reasons (Bufferne v. France (dec.), 2002; Kukkonen v. Finland (no. 2), 2009, § 24). Compare Gorou v. Greece (no. 4), 2007, § 22.

Furthermore, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court’s decision (García Ruiz v. Spain [GC], 1999, § 26; contrast Tatishvili v. Russia, 2007, § 62). However, the notion of a fair procedure requires that a national court which has given sparse reasons for its decisions, whether by incorporating the reasons of a lower court or otherwise, did in fact address the essential issues which were submitted to its jurisdiction and did not merely endorse without further ado the findings reached by a lower court (Helle v. Finland, 1997, § 60). This requirement is all the more important where a litigant has not been able to present his case orally in the domestic proceedings (ibid.).

However, appellate courts (at second instance) with responsibility for filtering out unfounded appeals and with jurisdiction to deal with questions of fact and law in civil proceedings are required to give reasons for their refusal to accept an appeal for adjudication (Hansen v. Norway, 2014, §§ 77- 83). In the case cited, the Court of Appeal had refused to consider an appeal by the applicant against a decision by the first-instance court in civil proceedings, holding that it was “clear that the appeal will not succeed” and in doing so simply reproducing the wording of the Code of Civil Procedure.

Departure from Precedent

Furthermore, a constitutional court that has departed from one of its previous judgments simply by expressing its “disagreement” with its earlier position has not provided sufficient reasons (Grzęda v. Poland [GC], § 315). Furthermore, the Court found no violation in a case where no specific response had been given to an argument relating to an inconsequential aspect of the case – namely the absence of a signature and a stamp, which was a flaw of a formal rather than substantive nature and had been promptly rectified (Mugoša v. Montenegro, 2016, § 63).

However, the Court has emphasised the importance of sufficient reasons being provided by the court, for example in civil liability proceedings relating to a criminal act (see Carmel Saliba v. Malta, 2016, § 78, and the link with safeguards in “criminal” matters). Lastly, it has held that a deficiency in the provision of reasons may result in a “denial of justice” (Ballıktaş Bingöllü v. Turkey, 2021, § 77, and see under “Fourth instance” above