Public Hearing [ECHR]

Public Judgement

Article 6 § 1 of the Convention
“1. In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing by [a] tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

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

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.

Public Hearing

A hearing in public is a key aspect of a fair trial. It permits the public to witness justice in action and build confidence.

in Axen v Germany the court indicated that the holding of some parts of the proceedings behind closed doors did not breach the guarantee provided that the proceedings as a whole are in public. Considerations of privacy vulnerability and national security may justify proceedings being held in private.

In Riepen v Austria proceedings for offences alleged to have been committed in prison were held in Britain, which was technically open to the public, but there was no publicity about the date and time. The European court held that a public trial presupposes that meaningful information is available about it and that it is readily accessible.

P & B v UK, the court confirmed that the press and public may be excluded from child protection proceedings. Where for the interests of juveniles or the private life of the parties so require, then the hearing may be not in public, to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. Similarly issues of national security may justify redaction or limitation.

Examples

General principles: in principle, litigants have a right to a public hearing because this protects them against the administration of justice in secret with no public scrutiny (Straume v. Latvia, 2022,§§ 124-125 – regarding the principle of the secrecy of judicial investigations, see Ernst and Others v. Belgium, 2003, §§ 67-68). By rendering the administration of justice visible, a public hearing contributes to the achievement of the aim of Article 6 § 1, namely a fair trial (Malhous v. the Czech Republic [GC], 2001, §§ 55-56).

While a public hearing constitutes a fundamental principle enshrined in Article 6 § 1, the obligation to hold such a hearing is not absolute (De Tommaso v. Italy [GC], 2017,§ 163). The right to an oral hearing is not only linked to the question whether the proceedings involve the examination of witnesses who will give their evidence orally (Ramos Nunes de Carvalho e Sá v. Portugal [GC], 2018, § 187). To establish whether a trial complies with the requirement of publicity, it is necessary to consider the proceedings as a whole (Axen v. Germany, 1983, § 28).

In proceedings before a court of first and only instance the right to a “public hearing” under Article 6 § 1 entails an entitlement to an “oral hearing” (Göç v. Turkey [GC], 2002, § 47; Fredin v. Sweden (no. 2), 1994, §§ 21-22; Allan Jacobsson v. Sweden (no. 2), 1998, § 46; Selmani and Others v. the former Yugoslav Republic of Macedonia, 2017, §§ 37-39) unless there are exceptional circumstances that justify dispensing with such a hearing (Hesse-Anger and Anger v. Germany (dec.), 2001; Mirovni Inštitut v. Slovenia, 2018, § 36). The exceptional character of such circumstances stems essentially from the nature of the questions at issue, for example in cases where the proceedings concern exclusively legal or highly technical questions (Koottummel v. Austria, 2009, § 19), and not from the frequency of such questions (Miller v. Sweden, 2005, § 29; Mirovni Inštitut v. Slovenia, 2018,§ 37). For a recapitulation of the case-law, see Ramos Nunes de Carvalho e Sá v. Portugal [GC], 2018, §§ 188-190.

Higher Level Appeal

The absence of a hearing at second or third instance may be justified by the special features of the proceedings concerned, provided a hearing has been held at first instance (Helmers v. Sweden, 1991, § 36, but contrast §§ 38-39; Salomonsson v. Sweden, 2002, § 36). Thus, leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6 even though the appellant was not given an opportunity of being heard in person by the appeal or cassation court (Miller v. Sweden, 2005, § 30). Regard therefore needs to be had to the particularities of proceedings in the highest courts.

The Court has examined whether the lack of a public hearing at the level below may be remedied by holding a public hearing at the appeal stage. In a number of cases, it has found that the fact that proceedings before the appellate court are held in public cannot remedy the lack of a public hearing at the lower levels of jurisdiction where the scope of the appeal proceedings is limited, in particular where the appellate court cannot review the merits of the case, including a review of the facts and an assessment as to whether the penalty was proportionate to the misconduct.

If, however, the appellate court has full jurisdiction, the lack of a hearing before a lower level of jurisdiction may be remedied before that court (Ramos Nunes de Carvalho e Sá v. Portugal [GC], 2018, § 192 and case-law references therein). As a result, a complaint concerning the lack of a public hearing may be closely linked to a complaint concerning the allegedly insufficient extent of the review performed by the appellate body (ibid., § 193). The lack of a hearing in the trial court can only be remedied by a full public rehearing before the appellate court (Khrabrova v. Russia, 2012, § 52).

The Court has emphasised the importance of an adversarial hearing before the body performing the judicial review of a decision not complying with the guarantees of Article 6, where that body has a duty to ascertain whether the factual basis for the decision was sufficient to justify it (Ramos Nunes de Carvalho e Sá v. Portugal [GC], 2018, § 211). In this particular case, the lack of a hearing either at the stage of the disciplinary decision or at the judicial review stage, combined with the insufficiency of the judicial review, gave rise to a violation of Article 6 § 1 (§ 214).

Dispensing with Hearing

Accordingly, unless there are exceptional circumstances that justify dispensing with a hearing (see the summary of the case-law in Ramos Nunes de Carvalho e Sá v. Portugal [GC], 2018, § 190), the right to a public hearing under Article 6 § 1 implies a right to an oral hearing at least at one level of jurisdiction (Fischer v. Austria, 1995, § 44; Salomonsson v. Sweden, 2002, § 36).

In Vilho Eskelinen and Others v. Finland [GC], 2007, § 74, the Court found no violation of Article 6 § 1 on account of the lack of a hearing. It attached weight to the fact that the applicants had been able to request a hearing, although it had been for the courts to decide whether a hearing was necessary;that the courts had given reasons for refusing to hold a hearing; and that the applicants had been given ample opportunity to put forward their case in writing and to comment on the submissions of the other party (ibid.). For a case where interim measures were taken without a hearing being held, see Helmut Blum v. Austria, 2016, §§ 70-74.

It may also be legitimate in certain cases for the national authorities to have regard to the demands of efficiency and economy (Eker v. Turkey, 2017, § 29). In the case cited, the Court did not deny that the proceedings at two levels of jurisdiction had taken place without a hearing. It pointed out that the legal issues had not been especially complex and that it had been necessary to conduct the proceedings promptly (§ 31). The dispute had concerned textual and technical matters that could be adequately determined on the strength of the case file. Moreover, the proceedings had involved an exceptional emergency procedure (an application for an order for publication of a reply in a newspaper), which the Court found to be necessary and justifiable in the interests of the proper functioning of the press.

However, the Court found a violation of Article 6 § 1 in Straume v. Latvia, 2022, concerning the freedom of expression of a representative of an air traffic controllers’ trade union, where no public hearing on the merits had been held by the courts at first instance or on appeal. The Court did not accept, in particular, the reasons given by the national courts to justify excluding the public and emphasised that the subject matter of the dispute had called for public scrutiny (§§ 127-129).

It should be noted that in the context of disciplinary proceedings, in view of what is at stake – namely the impact of the possible penalties on the lives and careers of the persons concerned and their financial implications – the Court has held that dispensing with an oral hearing should be an exceptional measure and should be duly justified in the light of its case-law (Ramos Nunes de Carvalho e Sá v. Portugal [GC], 2018, §§ 208-211). The case cited is also important in relation to disciplinary sanctions against a judge. The Court emphasised the specific context of disciplinary proceedings conducted against judges (§§ 196, 211 and 214).

Appear / Attend

As regards proceedings concerning prisoners, incarceration cannot in itself justify not giving them a hearing before a civil court (Igranov and Others v. Russia, 2018, §§ 34-35). Practical reasons may be taken into consideration but the principles of the right to a fair hearing must be observed and the prisoner must have the opportunity to ask to be present at the hearing (Altay v. Turkey (no. 2), 2019, § 77). If the prisoner has not made such a request when this possibility was not provided for in domestic law, that does not mean that the prisoner has waived his or her right to appear in court (§ 78).

In this context, the first question to be determined is whether the nature of the dispute dictates that the prisoner should appear in person (Zayidov v. Azerbaijan (no. 2), 2022, §§ 88-89). If so, the domestic authorities are required to take practical measures of a procedural nature to ensure the prisoner’s effective participation in the hearing in his or her civil case (Yevdokimov and Others v. Russia, 2016, §§ 33-47 – referring to Marcello Viola v. Italy, 2006, as regards participation in the hearing via video link and other types of practical measures; see the case-law references cited – and § 52).

In the case cited, the domestic courts had refused to allow prisoners to attend hearings in civil proceedings to which they were parties, on the grounds that no provision was made in domestic law for transferring the prisoners to the court. Finding that the applicants had been deprived of the opportunity to present their cases effectively, the Court held that the domestic authorities had failed to meet their obligation to ensure respect for the principle of a fair trial (§ 52 – see also Altay v. Turkey (no. 2), 2019, §§ 78- 81).

Furthermore, a practical problem arising because the applicant is serving a prison sentence in a different country does not preclude consideration of alternative procedural options, such as the use of modern communication technologies, so that the applicant’s right to be heard can be respected (Pönkä v. Estonia, 2016, § 39).

In Ramos Nunes de Carvalho e Sá v. Portugal [GC], 2018, the Grand Chamber summarised some examples of situations where a hearing was, or was not, necessary (§§ 190-191).

The case of Pönkä v. Estonia, 2016, concerned the use of a simplified procedure (reserved for small claims) and the court’s refusal to hold a hearing, without providing reasons for its application of the written procedure (§§ 37-40). The case of Mirovni Inštitut v. Slovenia, 2018, concerned a challenge against a decision to reject a bid in a tendering procedure. The domestic court had given no explanation for refusing to hold a hearing, thus preventing the Court from determining whether the domestic court had simply neglected to deal with the applicant institute’s request for a hearing or whether it had decided to dismiss it and, if so, for what reasons (§ 44). In both cases the Court found that the refusal to hold a hearing had breached Article 6 § 1 (Pönkä v. Estonia, 2016, § 40; Mirovni Inštitut v. Slovenia, 2018, § 45). As to the extent of the reasons to be provided, in Cimperšek v. Slovenia the Court emphasised the importance of justifying the refusal to hold a hearing on the basis of the factual circumstances of the case (§ 45).

In Straume v. Latvia, 2022, concerning the freedom of expression of a representative of an air traffic controllers’ trade union, the Court did not accept, in particular, the reasons given by the national courts to justify excluding the public and emphasised that the subject matter of the dispute had called for public scrutiny (§§ 127-129).

In a case concerning hearings before the Court of Arbitration for Sport (CAS), the Court found that the matters relating to the question whether the sanction imposed on the applicant for doping had been justified, had required a hearing open to public scrutiny. It observed that the facts had been contested and that the penalties which the applicant had been liable to incur carried a significant degree of stigma and were likely to adversely affect her professional honour. It therefore concluded that there had been a violation of Article 6 § 1 on account of the lack of a public hearing before the CAS (Mutu and Pechstein v. Switzerland, 2018, §§ 182-183).

Whenever an oral hearing is to be held, the parties have the right to attend (for the holding of a hearing earlier than scheduled in the context of an appeal on points of law by the public prosecutor, depriving the applicant of her right to appear in court, see Andrejeva v. Latvia [GC], 2009, §§ 99-101), to make oral submissions, to choose another way of participating in the proceedings (for example by appointing a representative) or to ask for an adjournment. For the effective exercise of those rights, the parties must be informed of the date and place of the hearing sufficiently in advance to be able to make arrangements.

The Court has stated that the national courts are required to check the validity of the notification prior to embarking on the merits of the case. The analysis set out in the domestic decisions must go beyond a mere reference to the dispatch of a judicial summons and must make the most of the available evidence in order to ascertain whether an absent party was in fact informed of the hearing sufficiently in advance. A domestic court’s failure to ascertain whether an absent party received the summons in due time and, if not, whether the hearing should be adjourned, is in itself incompatible with genuine respect for the principle of a fair hearing and may lead the Court to find a violation of Article 6 § 1 (see Gankin and Others v. Russia, 2016, §§ 39 and 42, and the summary of the principles established in the case-law concerning notification of hearings, the provision of information to the parties and the question of waiving the right to a hearing, §§ 34-38).

In some situations, appearing in person may be problematic, and the Court has found that a litigant’s participation in civil proceedings via video link (Skype), with his lawyer present in the courtroom, was compatible with the right to a fair hearing in the circumstances of the particular case (Jallow v. Norway, 2021, concerning proceedings for parental responsibility involving a foreign applicant who was not allowed to enter the country).

Presence of Press and Public:

The public character of proceedings before judicial bodies protects litigants against the administration of justice in secret with no public scrutiny and thus constitutes one of the means whereby confidence in the courts can be maintained, contributing to the achievement of the aim of a fair trial (Diennet v. France, 1995, § 33; Martinie v. France [GC], 2006, § 39; Gautrin and Others v. France, 1998, § 42; Hurter v. Switzerland, 2005, § 26; Lorenzetti v. Italy, 2012, § 30). Article 6 § 1 does not, however, prohibit courts from deciding, in the light of the special features of the case, to derogate from this principle (Martinie v. France [GC], 2006, §§ 40-44). Holding proceedings, whether wholly or partly, in camera must be strictly required by the circumstances of the case (Lorenzetti v. Italy, 2012, § 30). The wording of Article 6 § 1 provides for several exceptions.

According to the wording of Article 6 § 1, “[t]he press and public may be excluded from all or part of the trial”:

• in the interests of morals, public order or national security in a democratic society” (B. and P. v. the United Kingdom, 2001, § 39; Zagorodnikov v. Russia, 2007, § 26);
• where the interests of juveniles or the protection of the private life of the parties so require”: the interests of juveniles or the protection of the private life of the parties are in issue, for example, in proceedings concerning the residence of minors following their parents’ separation, or disputes between members of the same family (ibid., § 38); however,in cases involving the transfer of a child to a public institution the reasons for excluding a case from public scrutiny must be subject to careful examination (Moser v. Austria, 2006,§ 97). As for disciplinary proceedings against a doctor, while the need to protect professional confidentiality and the private lives of patients may justify holding proceedings in private, such an occurrence must be strictly required by the circumstances (Diennet v. France, 1995,§ 34; and for an example of proceedings against a lawyer: Hurter v. Switzerland, 2005, §§ 30- 32);
• or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”: it is possible to limit the open and public nature of proceedings in order to protect the safety and privacy of witnesses, or to promote the free exchange of information and opinion in the pursuit of justice (B. and P. v. the United Kingdom, 2001, § 38; Osinger v. Austria, 2005, § 45).

The Court has added that the case-law concerning the holding of a hearing as such, relating mainly to the right to address the court as enshrined in Article 6 § 1 (see above) is applicable by analogy to hearings that are open to the public. Thus, where a hearing takes place in accordance with domestic law, it must in principle be public. The obligation to hold a public hearing is not absolute since the circumstances that may justify dispensing with one will essentially depend on the nature of the issues to be determined by the domestic courts (De Tommaso v. Italy [GC], 2017, §§ 163-67). “Exceptional circumstances – including the highly technical nature of the matters to be determined – may justify the lack of a public hearing, provided that the specific subject matter does not require public scrutiny” (Lorenzetti v. Italy, 2012, § 32).

The mere presence of classified information in the case file does not automatically imply a need to close a trial to the public. Accordingly, before excluding the public from a particular set of proceedings, the courts must consider specifically whether such exclusion is necessary for the protection of a public interest, and must confine the measure to what is strictly necessary in order to attain the aim pursued (Nikolova and Vandova v. Bulgaria, 2013, §§ 74-77, concerning a hearing held in camera because of documents classified as State secrets; see also, regarding the principles, Vasil Vasilev v. Bulgaria, 2021, §§ 105-106). A similar approach applies to proceedings for damages in connection with the interception of a lawyer’s telephone conversations (ibid., §§ 107-109).

Lastly, the lack of a hearing may or may not be sufficiently remedied at a later stage in the proceedings (Malhous v. the Czech Republic [GC], 2001, § 62; Le Compte, Van Leuven and De Meyere v. Belgium, 1981, §§ 60-61; Diennet v. France, 1995, § 34).

Waiver

A failure to engage in proceedings or absconding may constitute a waiver. Waiver of the right to a public hearing/to appear at the hearing: neither the letter nor the spirit of Article 6 § 1 prevents an individual from waiving his right to a public hearing of his own free will, whether expressly or tacitly, but such a waiver must be made in an unequivocal manner and must not run counter to any important public interest (Le Compte, Van Leuven and De Meyere v. Belgium, 1981, § 59; Håkansson and Sturesson v. Sweden, 1990, § 66; Exel v. the Czech Republic, 2005, § 46). The summons to appear must also have been received in good time (Yakovlev v. Russia, 2005, §§ 20-22; Dilipak and Karakaya v. Turkey, 2014, §§ 79-87).

In Sejdovic v Italy, it has held that it was possible to waive Article 6 rights to some extent. However, the waiver must be unequivocal and must have safeguards to protect against misuse. It must not undermine important public interests.

However, this must be reasonably apparent. In Jones v UK, the court indicated that where a person did not attend at the start of the trial and could not be expected to understand that failure to attend could lead to a trial in his absence proceeding, the proceedings did not respect the guarantee.

Conditions governing a waiver of these rights: the person concerned must consent (Le Compte, Van Leuven and De Meyere v. Belgium, 1981, § 59), of his own free will (Albert and Le Compte v. Belgium, § 35). The right may be waived expressly or tacitly (Le Compte, Van Leuven and De Meyere v. Belgium, 1981, § 59). But it must be done in an unequivocal manner (Albert and Le Compte v. Belgium, 1983, § 35; Håkansson and Sturesson v. Sweden, 1990, § 67) – as the Court emphasised more recently in Vasil Vasilev v. Bulgaria, 2021, § 111 – and it must not run counter to any important public interest (Håkansson and Sturesson v. Sweden, § 66).

Failure to request a public hearing does not necessarily mean that the person concerned has waived the right to have one held; regard must be had to the relevant domestic law (Göç v. Turkey [GC], 2002, § 48 in fine; Exel v. the Czech Republic, 2005, § 47; see also Vasil Vasilev v. Bulgaria, 2021,§ 111). Whether or not the applicant requested a public hearing is irrelevant if the applicable domestic law expressly excludes that possibility (Eisenstecken v. Austria, 2000, § 33).