Equality of Arms [ECHR]

Principle

“Equality of arms” is central to Article 6.1. This requires fairness between parties in civil and criminal proceedings. It does not need to be absolute. There is no general obligation to provide legal aid. Each party should have a reasonable opportunity to present his case and evidence in a manner that does not place him at a substantial disadvantage relative to his opponents.

The principle of “equality of arms” is inherent in the broader concept of a fair trial and is closely linked to the adversarial principle (Regner v. the Czech Republic [GC], 2017). The requirement of “equality of arms”, in the sense of a “fair balance” between the parties, applies in principle to civil as well as to criminal cases.

Equality of arms implies that each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a “substantial disadvantage” vis-à-vis the other party (Kress v. France [GC], 2001)

• This principle, which covers all aspects of procedural law in the Contracting States, is also applicable in the specific sphere of service of judicial documents on the parties, although Article 6 § 1 cannot be interpreted as prescribing a specific form of service of documents (Avotiņš v. Latvia [GC], 2016,.
• It is inadmissible for one party to make submissions to a court without the knowledge of the other and on which the latter has no opportunity to comment. It is a matter for the parties alone to assess whether a submission deserves a reaction (APEH Üldözötteinek Szövetsége and Others v. Hungary, 2000, § 42).
• However, if observations submitted to the court are not communicated to either of the parties there will be no infringement of equality of arms as such (Kress v. France [GC], 2001, 3), but rather of the broader fairness of the proceedings (Nideröst-Huber v. Switzerland, 1997, §§ 23-24; Clinique des Acacias and Others v. France, 2005, §§ 36-37).

Examples

In Rowe & Davis v UK it was confirmed that there was a fundamental right to a fair trial in criminal proceedings including the elements of such proceedings which relate to procedure, should be adversarial that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means in a criminal case that the prosecution and defence must be given the opportunity to have knowledge of and comment on the observations on the evidence produced by the other party. In addition, Article 6.1 requires that the prosecution authority should disclose to the defence all material evidence in their possession, for or against the accused.

Examples of failure to observe the equality of arms principle: this principle was found to have been breached in the following cases because one of the parties had been placed at a clear disadvantage:

• Party’s appeal was not served on the other party, who therefore had no possibility to respond (Beer v. Austria, 2001, § 19).
• Time had ceased to run against one of the parties only, placing the other at a substantial disadvantage (Platakou v. Greece, 2001, § 48; Wynen and Centre hospitalier interrégional Edith-Cavell v. Belgium, 2002, § 32).
• Only one of the two key witnesses was permitted to be heard (Dombo Beheer B.V. v. the Netherlands, 1993, §§ 34-35).
• The opposing party enjoyed significant advantages as regards access to relevant information, occupied a dominant position in the proceedings and wielded considerable influence with regard to the court’s assessment (Yvon v. France, 2003, § 37).
• The opposing party held positions or functions which put them at an advantage and the court made it difficult for the other party to challenge them seriously by not allowing it to adduce relevant documentary or witness evidence (De Haes and Gijsels v. Belgium, 1997, §§ 54 and 58).
• In administrative proceedings the reasons given by the administrative authority were too summary and general to enable the appellant to mount a reasoned challenge to their assessment; and the tribunals of fact declined to allow the applicant to submit arguments in support of his case (Hentrich v. France, 1994, § 56).
• The denial of legal aid to one of the parties deprived them of the opportunity to present their case effectively before the court in the face of a far wealthier opponent (Steel and Morris v. the United Kingdom, 2005, § 72).
• In its Martinie v. France, 2006, [GC], § 50, the Court considered that there was an imbalance detrimental to litigants on account of State Counsel’s position in the proceedings before the Court of Audit: unlike the other party, he was present at the hearing, was informed beforehand of the reporting judge’s point of view, heard the latter’s submissions at the hearing, fully participated in the proceedings and could express his own point of view orally without being contradicted by the other party, and that imbalance was accentuated by the fact that the hearing was not public.
• The prosecutor intervened in support of the arguments of the applicant’s opponent (Menchinskaya v. Russia, 2009, §§ 35-39).
• The judge refused to adjourn a hearing even though the applicant had been taken to hospital in an emergency and his lawyer had been unable to represent him at the hearing, thus irretrievably depriving him of the right to respond adequately to his opponent’s submissions (Vardanyan and Nanushyan v. Armenia, 2016, §§ 88-90).

Administration of Evidence

The Convention does not lay down rules on evidence as such (Mantovanelli v. France, 1997, § 34). The admissibility of evidence and the way it should be assessed are primarily matters for regulation by national law and the national courts (García Ruiz v. Spain [GC], 1999, § 28; Moreira de Azevedo v. Portugal, 1990, §§ 83-84). The same applies to the probative value of evidence and the burden of proof (Tiemann v. France and Germany (dec.), 2000). It is also for the national courts to assess the relevance of proposed evidence (Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], 2012,§ 198).

Presumptions of fact or of law operate in every legal system, and the Convention does not prohibit such presumptions in principle; however, individuals must be afforded effective judicial safeguards (Lady S.R.L. v. Republic of Moldova, 2018, § 27). The Court has also accepted that the principle of legal certainty implies that a party relying on the assessment made by a court in a previous case on an issue also arising in the case at hand may legitimately expect the court to follow its previous ruling, unless there is a valid reason for departing from it (Siegle v. Romania, 2013, §§ 38-39, and Rozalia Avram v. Romania, 2014, §§ 42-43).

However, the Court’s task under the Convention is to ascertain whether the proceedings as a whole were fair, including the way in which evidence was taken (Elsholz v. Germany [GC], 2000, § 66; Devinar v. Slovenia, 2018, § 45). It must therefore establish whether the evidence was presented in such a way as to guarantee a fair trial (Blücher v. the Czech Republic, 2005, § 65). The Court should not act as a fourth-instance body and will therefore not question under Article 6 § 1 the national courts’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (Bochan
v. Ukraine (no. 2) [GC], 2015, § 61, and López Ribalda and Others v. Spain [GC], 2019, §§ 149, 159-161).

It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible. It must examine whether the proceedings as a whole, including the way in which the evidence was obtained, were fair; this involves an examination of the unlawfulness in question and, where the violation of another Convention right is concerned, the nature of the violation found  In the judgment cited, the Court laid down criteria for determining whether the use of information obtained in violation of Article 8 or of domestic law as evidence rendered civil proceedings unfair (§§ 151-152).

In that case, the Court did not find a violation of Article 8 on account of the secret video-surveillance of employees. However, the employees argued that the video-surveillance had been installed in breach of domestic law and that the national courts had not addressed that question, having deemed it irrelevant. The Court examined whether the use of images obtained by means of covert video-surveillance as evidence in civil proceedings had undermined the fairness of the proceedings as a whole. It found no violation of Article 6 in this particular case (§§ 154-158).

In the course of the proceedings, care must be taken to protect vulnerable individuals, for example those with a mental disability, and their dignity and interests in relation to Article 8 (Evers v. Germany, 2020, §§ 82-84).
It is the duty of the national courts to conduct a proper examination of the submissions, arguments and evidence adduced by the parties (Van de Hurk v. the Netherlands, 1994, § 59). Accordingly, it is for litigants to adduce relevant and sufficient evidence in support of their case (Fleischner v. Germany, 2019, §§ 40-41).
There is no absolute right to the disclosure of any evidence (Adomaitis v. Lithuania, 2022, §§ 70- 73, concerning the secret interception of telephone communications as a basis for disciplinary penalties against a public official).

Witness Evidence

Article 6 § 1 does not explicitly guarantee the right to have witnesses called, and the admissibility of witness evidence is in principle a matter of domestic law. However, the proceedings in their entirety, including the way in which evidence was permitted, must be “fair” within the meaning of Article 6 § 1 (Dombo Beheer B.V. v. the Netherlands, 1993, § 31).

• The court must reply to a request to hear witnesses that has been submitted in the appropriate manner (Carmel Saliba v. Malta, 2016, § 77).
• Where courts refuse requests to have witnesses called, they must give sufficient reasons and the refusal must not be tainted by arbitrariness: it must not amount to a disproportionate restriction of the litigant’s ability to present arguments in support of his case (Wierzbicki v. Poland, 2002, § 45).
• A difference of treatment in respect of the hearing of the parties’ witnesses may be such as to infringe the “equality of arms” principle (Ankerl v. Switzerland, 1996, § 38, where the Court found that the difference of treatment had not placed the applicant at a substantial disadvantage vis-à-vis his opponent; contrast Dombo Beheer B.V. v. the Netherlands, 1993,§ 35, where only one of the two participants in the events in issue was allowed to give evidence (violation)).
• The court must also give reasons for finding that witness evidence is unreliable or irrelevant (Carmel Saliba v. Malta, 2016, §§ 69-70).
• A refusal to allow the cross-examination of a witness may be in breach of Article 6 § 1 (Carmel Saliba v. Malta, 2016, § 76).

Expert Opinions

Domestic rules on the admissibility of expert evidence must afford litigants the possibility of challenging it effectively (Letinčić v. Croatia, 2016, § 50). The Court reiterated the applicable general principles in Hamzagić v. Croatia, 2021, §§ 40-44. There is no objection per se to experts participating as lay members in the decision-making process within a court (Pabla Ky v. Finland, 2004, § 32).

Refusal to order an expert opinion:

• Refusal to order an expert opinion is not, in itself, unfair; the Court must ascertain whether the proceedings as a whole were fair (H. v. France, 1989, § 61 and 70). The reasons given for the refusal must be reasonable (Hamzagić v. Croatia, 2021, §§ 57-58).
• Refusal to order a psychological report in a case concerning child custody and access must also be examined in the light of the particular circumstances of the case (Elsholz v. Germany [GC], 2000, § 66, and mutatis mutandis Sommerfeld v. Germany [GC], 2003, § 71).
• In a child abduction case (Tiemann v. France and Germany (dec.), 2000) the Court examined whether a Court of Appeal had given sufficient grounds for its refusal to allow the applicant’s request for a second expert opinion, in order to ascertain whether the refusal had been reasonable.

Appointment of an expert: where an expert has been appointed by a court, the parties must be able to attend the interviews held by him or her or to be shown the documents he or she has taken into account; what is essential is that the parties should be able to participate properly in the proceedings (Letinčić v. Croatia, 2016, § 50; Devinar v. Slovenia, 2018, § 46).

Article 6 § 1 of the Convention does not expressly require an expert heard by a “tribunal” to fulfil the same independence and impartiality requirements as the tribunal itself (Sara Lind Eggertsdóttir v. Iceland, 2007, § 47; Letinčić v. Croatia, 2016, § 51). However, a lack of neutrality on the part of an expert, together with his or her position and role in the proceedings, can tip the balance of the proceedings in favour of one party to the detriment of the other, in violation of the equality of arms principle (Sara Lind Eggertsdóttir v. Iceland, 2007, § 53; Letinčić v. Croatia, 2016, § 51); likewise, the expert may occupy a preponderant position in the proceedings and exert considerable influence on the court’s assessment (Yvon v. France, 2003, § 37; Letinčić v. Croatia, 2016, § 51). To sum up, the position occupied by the expert throughout the proceedings, the manner in which his or her duties are performed and the way the judges assess his or her opinion are relevant factors to be taken into account in assessing whether the principle of equality of arms has been complied with (Devinar v. Slovenia, 2018, § 47).

A medical expert report pertaining to a technical field that is not within the judges’ knowledge is likely to have a preponderant influence on their assessment of the facts; it is an essential piece of evidence and the parties must be able to comment effectively on it (Mantovanelli v. France, 1997,
§ 36; Storck v. Germany, 2005, § 135). It is an important requirement that the expert should be independent from the parties to the case, both formally and in practice (Tabak v. Croatia, 2022, § 60).

Where the only expert opinion produced before a court was issued by a specialist body, for example in relation to disability benefits, it will have a decisive influence on the court in the absence of a second opinion by an independent expert (Devinar v. Slovenia, 2018, §§ 49-50; ). However, the following should be noted.

The Convention does not bar the national courts from relying on expert opinions drawn up by specialist bodies that are themselves parties to the case where this is required by the nature of the issues in dispute (Letinčić v. Croatia, 2016, § 61; Devinar v. Slovenia, 2018, § 47). The fact that an expert is employed by the same administrative authority that is a party to the case might give rise to doubts on the part of the applicant as the opposing party, but what is decisive is whether such doubts can be held to be objectively justified (Devinar v. Slovenia, 2018, §§ 48 and 51; Hamzagić v. Croatia, 2021, §§ 49-52, concerning a disability pension granted in one country but not in another, where the applicant’s doubts were not held to be justified).

When requesting a second opinion by an independent expert, the applicant is thus required to produce sufficient material to substantiate the request (Devinar v. Slovenia, §§ 56-58). Should the applicant fail to do so, despite having had the right to comment on the expert opinion and challenge it in writing and orally or to submit an opposing opinion by a specialist of his or her choice, the Court will find no violation of Article 6 (§ 56). There may also be a finding of no violation where the matter has been examined by several experts whose opinions converged, and the applicant has not produced any evidence that could give rise to doubts in that regard (Krunoslava Zovko v. Croatia, 2017, §§ 48-50). The expert’s position in the defendant company and the weight attached to the expert report in the proceedings may raise an apparent issue as to the expert’s neutrality (Tabak v. Croatia, 2022, § 66); however, if the applicant was legally represented in the domestic proceedings and did not raise this issue despite having the opportunity to do so, he or she has failed to act with the necessary diligence

Concerning the parties’ rights vis-à-vis the expert: compare Feldbrugge v. the Netherlands, 1986,
§ 44 (violation), with Olsson v. Sweden (no. 1), 1988, §§ 89-91 (no violation). As regards the requirement to disclose an adverse report,L. v. the United Kingdom (dec.), 1999, and as regards access to material in a guardianship case file, Evers v. Germany, 2020, §§ 86-93). For the appointment of a medical expert not specialising in the applicant’s condition, Hamzagić v. Croatia, 2021, § 54.

Non-disclosure of Evidence

In certain cases, overriding national interests have been put forward to deny a party fully adversarial proceedings by refusing to disclose evidence, such as national security considerations (Regner v. the Czech Republic [GC], 2017 – compare with Corneschi v. Romania, 2022; Miryana Petrova v. Bulgaria, 2016, §§ 39-40), or the need to keep certain police investigation/surveillance methods secret (Adomaitis v. Lithuania, 2022, § 68).

In the Court’s view, the right to disclosure of relevant evidence is not absolute. However, only measures restricting the rights of a party to the proceedings which do not affect the very essence of those rights are permissible under Article 6 § 1 (Regner v. the Czech Republic [GC], 2017, § 148 ; Adomaitis v. Lithuania, 2022, §§ 68-74).

For that to be the case, any difficulties caused to the applicant by a limitation of his or her rights must be sufficiently counterbalanced by the procedure followed by the judicial authorities. Where evidence has been withheld from the applicant on public-interest grounds, the Court must scrutinise the decision-making procedure to ensure that, as far as possible, it complied with the requirements to provide adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the applicant’s interests (Regner v. the Czech Republic [GC], 2017, §§ 147-49).

The above-mentioned case raised the issue of the need to preserve the confidentiality of classified documents. The Court had regard to the proceedings as a whole, examining whether the restrictions on the adversarial and equality-of-arms principles had been sufficiently counterbalanced by other procedural safeguards (§ 151). The Court held that the proceedings as a whole had offset the restrictions curtailing the applicant’s enjoyment of the rights afforded to him in accordance with the principles of adversarial proceedings and equality of arms (§ 161). Conversely, in Corneschi
v. Romania, 2022, after noting that the applicant had not unequivocally waived his right to be informed (§§ 94-96), the Court examined whether the restriction of access to documents had been “necessary” (§ 100), before determining whether there had been any counterbalancing measures and found a violation of Article 6 of the Convention.

In Adomaitis v. Lithuania, 2022, concerning the secret interception of telephone communications to provide a basis for a disciplinary penalty against a prison governor in the form of dismissal, the Court took into account the need to keep certain police investigation/surveillance methods secret (§ 68). However, there must be an opportunity to review whether the contested surveillance measure has been lawfully ordered and executed; in the context of such a review, the person concerned must, “at the very least”, be provided with “sufficient information” about the existence of an authorisation and about the decision authorising the surveillance (§ 68).

Appearance in Person

Equality of arms requires that a party in civil or criminal matters should be able to participate in the proceedings. In Kremzow v Austria the applicant was not present in court for a sentencing hearing. The European court indicated that as a general rule, the accused person should be present and able to attend the proceedings including the appeal.

These proceedings were this of critical importance for the applicant and involve not only an assessment of his character and state of mind at the time of your fans but also his motive. In circumstances such as those of the present case where evaluations of this kind were to play such a significant role and where their outcome could be a major detriment to him, it was essential to the fairness of the proceedings that he be present during the hearing of the appeals and afforded the opportunity to participate in [them].

In SC v UK a 11-year-old boy had the intellectual capacity of a child of 6 to 8 and had little understanding of the proceedings and what was involved. He was represented by counsel with significant informality but there was still found to be a breach of Article 6.1.

When the decision is taken to deal with the child such as the applicant who risk not being able to participate effectively because of his young age and limited intellectual capacity, by way of criminal proceedings rather than some other form of disposal directed primarily at the child’s best interests and those of the community it is essential that it be tried in a special tribunal which is able to give full consideration and proper allowances for the handicaps under which he labours and adapts its procedures accordingly.

State Immunity

In Osman v UK it was claimed that the immunity of a police investigation from liability for negligence in civil cases breached the Convention. The European Court held that the absolute immunity was inconsistent with the Convention. In Z v UK the court stepped back from this position on the basis that the domestic final court in the UK had considered whether a duty of care might apply, in the context of local authority immunity in decisions on whether to take childcare proceedings.

In Markovic v Italy, relatives of persons killed in a NATO airstrike where aeroplanes had taken off from Italy sought to claim against the Italian government. It was held that procedurally there was no jurisdiction and there was no violation (10 votes to 7) because the domestic court examined and determined the matter was not justiciable as being in the political and military sphere.

Papon v France a rule that a convicted person had to surrender to custody in order to appeal was held to be disproportionate and to breach the guarantee.