A prominent place: the Court has always emphasised the prominent place held in a democratic society by the right to a fair trial (Stanev v. Bulgaria [GC], 2012, § 231; Airey v. Ireland, 1979, § 24). This guarantee “is one of the fundamental principles of any democratic society, within the meaning of the Convention” (Pretto and Others v. Italy, 1983, § 21).
The right to a fair hearing must be interpreted in the light of the Preamble to the Convention, which declares, among other things, the rule of law to be part of the common heritage of the Contracting States. Arbitrariness entails a negation of the rule of law and cannot be tolerated in respect of procedural rights any more than in respect of substantive rights (Grzęda v. Poland [GC], 2022 , § 339).
That being so, there can be no justification for interpreting Article 6 § 1 restrictively (Moreira de Azevedo v. Portugal, 1990, § 66). The requirement of fairness applies to proceedings in their entirety; it is not confined to hearings inter partes (Stran Greek Refineries and Stratis Andreadis v. Greece, 1994,
§ 49). Thus, the proceedings are examined as a whole in order to determine whether they were conducted in accordance with the requirements of a fair hearing (De Tommaso v. Italy [GC], 2017,§ 172; Regner v. the Czech Republic [GC], 2017, § 161, in accordance with the same principle as in criminal proceedings; see Beuze v. Belgium [GC], 2018, § 120). A lack of fairness may result from a series of factors of varying significance (Carmel Saliba v. Malta, 2016, § 79, concerning the requirement to provide reasons).
The Court has nevertheless specified that restrictions on an individual’s procedural rights may be justified in very exceptional circumstances (Adorisio and Others v. the Netherlands (dec.), 2015, concerning the short time available to the applicant for appealing and for studying documents filed by the opposing party, and the particular need for a very speedy decision by the domestic court).
Content: civil claims must be capable of being submitted to a judge (Fayed v. the United Kingdom, 1994, § 65) for an effective judicial review (Sabeh El Leil v. France [GC], 2011, § 46), meaning that a State cannot, without restraint or scrutiny by the Convention institutions, remove from the jurisdiction of its courts a whole range of civil claims or confer immunity from civil liability on entire categories of persons. Accordingly, where an emergency legislative decree does not contain any clear or explicit wording excluding the possibility of judicial supervision of the measures taken for its implementation, it must always be understood as authorising the State’s courts to exercise sufficient scrutiny so that any arbitrariness can be avoided (Pişkin v. Turkey, 2020, § 153). Article 6 § 1 describes in detail the procedural guarantees afforded to parties in civil proceedings. It is intended above all to secure the interests of the parties and those of the proper administration of justice (Nideröst-Huber v. Switzerland, 1997, § 30). Litigants must therefore be able to argue their case with the requisite effectiveness (H. v. Belgium, 1987, § 53). This does not mean that at a certain point in the proceedings the burden of proof cannot shift onto the litigant (Xhoxhaj v. Albania, 2021, § 352).
Role of the national authorities: the Court has always said that the national authorities must ensure in each individual case that the requirements of a “fair hearing” within the meaning of the Convention are met (Dombo Beheer B.V. v. the Netherlands, 1993, § 33 in fine).
The litigant’s claims: it is a matter of principle that in the determination of his “civil rights and obligations” – as defined in the case-law of the Strasbourg Court23 – everyone is entitled to a fair hearing by a tribunal. To this are added the guarantees laid down by Article 6 § 1 as regards both the organisation and the composition of the court, and the conduct of the proceedings. In sum, the whole makes up the right to a fair hearing (Golder v. the United Kingdom, 1975, § 36). However, neither the letter nor the spirit of Article 6 prevent a person from voluntarily waiving the guarantees of a fair hearing, either expressly or tacitly, subject to certain conditions (Dilipak and Karakaya v. Turkey,2014,
Principles of interpretation
The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally recognised fundamental principles of law; the same is true of the principle of international law which forbids the denial of justice. Article 6 § 1 must be read in the light of these principles (ibid., § 35).
As is reiterated in Grzęda v. Poland [GC], 2022, §§ 339-340, and Guðmundur Andri Ástráðsson v. Iceland [GC], 2020, §§ 237 et seq., the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 must be interpreted in the light of the Preamble to the Convention, which declares the rule of law (Sabeh El Leil v. France [GC], 2011, § 46) to be part of the common heritage of the Contracting States (Nejdet Şahin and Perihan Şahin v. Turkey [GC], 2011, § 57; Brumărescu v. Romania, 1999, § 61). The Court has held that the national authorities are in principle better placed than it is to assess how the interests of justice and the rule of law would be best served in a particular situation (Guðmundur Andri Ástráðsson v. Iceland [GC], 2020, § 243). However, it has also noted that the principle of the rule of law encompasses a number of other equally important principles, which, although interrelated and often complementary, may in some circumstances come into competition (§§ 237-240).
Even in the context of a state of emergency, the fundamental principle of the rule of law must prevail (Pişkin v. Turkey, 2020, § 153). Moreover, the duty of the State to provide adequate compensation for wrongs that are attributable to the authorities and have been duly established by the courts is of crucial importance in a society governed by the rule of law (Scordino v. Italy (no. 1) [GC], 2006, § 201).
One of the fundamental aspects of the rule of law is the principle of legal certainty, which is implicit in all of the Articles of the Convention (Nejdet Şahin and Perihan Şahin v. Turkey [GC], 2011, § 56; Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, § 116; Guðmundur Andri Ástráðsson v. Iceland [GC], 2020, § 238; see also Krivtsova v. Russia, 2022, §§ 37-39 – and, for example, as regards the absence of a limitation period, Oleksandr Volkov v. Ukraine, 2013, §§ 137-139, and Xhoxhaj v. Albania, 2021, §§ 348-349; and compare with Camelia Bogdan v. Romania, 2020, §§ 47-48, or, for the starting-point of such a period, Sanofi Pasteur v. France, 2020, § 52).
This principle presupposes, in general, respect for the principle of res judicata (Guðmundur Andri Ástráðsson v. Iceland [GC], 2020, § 238; Krivtsova v. Russia, 2022, §§ 37-39). Arbitrariness amounts to the negation of the principle of the rule of law (Al-Dulimi and Montana Management Inc. v. Switzerland [GC], 2016, § 145). This principle may also be infringed in other ways (Dolińska-Ficek and Ozimek v. Poland, 2021, §§ 328-330). For example, laws which are directed against specific persons are contrary to the rule of law (Grzęda v. Poland [GC], § 299).
In a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6 § 1 would not correspond to the aim and the purpose of that provision (Guðmundur Andri Ástráðsson v. Iceland [GC], 2020, § 283, for the role of the courts; Ryakib Biryukov v. Russia, 2008, § 37).
The Zubac v. Croatia [GC], 2018, case emphasised the importance of these principles, as did Guðmundur Andri Ástráðsson v. Iceland [GC], 2020, which also deals with situations in which the fundamental principles of the Convention come into conflict (§§ 237 et seq., § 243).
In addition, the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (Perez v. France [GC], 2004, § 80; Airey v. Ireland, 1979, § 24).
Civil v Criminal
States have greater latitude in civil matters: the Court has acknowledged that the requirements inherent in the concept of a “fair hearing” are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge: “the Contracting States have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases” (Peleki v. Greece, 2020, § 70; Dombo Beheer B.V. v. the Netherlands, 1993, § 32; Levages Prestations Services v. France, 1996,
§ 46). The requirements of Article 6 § 1 as regards cases concerning civil rights are less onerous than they are for criminal charges (König v. Germany, 1978, § 96).
The judgment in Moreira Ferreira v. Portugal (no. 2) [GC], 2017, §§ 66-67, confirmed that the rights of persons accused of or charged with a criminal offence required greater protection than the rights of parties to civil proceedings.
However, when it examines proceedings falling under the civil head of Article 6, the Court may find it necessary to draw inspiration from its approach to criminal-law matters (see, as regards the principle, López Ribalda and Others v. Spain [GC], 2019, § 152; Čivinskaitė v. Lithuania, 2020, § 121, and, for example, Dilipak and Karakaya v. Turkey, 2014, § 80, concerning a payment order imposed in absentia on a person who had not been served with a writ of summons; Carmel Saliba v. Malta, 2016, §§ 67 and 70-71, concerning civil liability for damage resulting from a criminal offence; R.S. v. Germany (dec.), 2017, §§ 35 and 43, concerning disciplinary proceedings in the armed forces). In cases where civil liability is incurred for damage arising out of a criminal offence, it is imperative that the domestic decisions are based on a thorough assessment of the evidence produced and that they contain adequate reasons, on account of the serious consequences which may ensue from such decisions (Carmel Saliba v. Malta, 2016, § 73)24.
Lastly, in very exceptional circumstances relating to a particular case, the Court has been able to take into account “the need for a very speedy decision” by the domestic court (Adorisio and Others v. the Netherlands (dec.), 2015).
An effective right
The parties to the proceedings have the right to present the observations which they regard as relevant to their case. This right can only be seen to be effective if the observations are actually “heard”, that is to say duly considered by the trial court (Donadze v. Georgia, 2006, § 35). In other words, the “tribunal” has a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties (for an appellant represented by a lawyer, see Göç v. Turkey [GC], 2002, § 57; Perez v. France [GC], 2004, § 80; Kraska v. Switzerland, 1993, § 30; Van de Hurk v. the Netherlands, 1994, § 59). In order for the right guaranteed by this Article to be effective, the authorities must exercise “diligence”: for an appellant not represented by a lawyer, see Kerojärvi v. Finland, 1995, § 42; Fretté v. France, 2002, § 49).
Proper participation of the appellant party in the proceedings requires the court, of its own motion, to communicate the documents at its disposal. It is not material, therefore, that the applicant did not complain about the non-communication of the relevant documents or took the initiative to access the case file (Kerojärvi v. Finland, 1995, § 42). The mere possibility for the appellant to consult the case file and obtain a copy of it is not, of itself, a sufficient safeguard (Göç v. Turkey [GC], 2002, § 57). Furthermore, the appellant must be allowed the necessary time to submit further arguments and evidence to the domestic court (see, for example, Adorisio and Others v. the Netherlands (dec.), 2015, concerning a short time-limit for appealing).
Regarding the “fair balance” between the parties (adversarial procedure and equality of arms), the presence of the litigants in court (Zayidov v. Azerbaijan (no. 2), 2022, § 87) and the participation of an independent member of the national legal service (government commissioner, advocate- general, public prosecutor, rapporteur, and so on), see Kramareva v. Russia, 2022, §§ 31-34 and 38 et seq. (concerning a prosecutor).
Obligation incumbent on the administrative authorities: the appellant must have access to the relevant documents in the possession of the administrative authorities, if necessary via a procedure for the disclosure of documents (McGinley and Egan v. the United Kingdom, 1998, §§ 86 and 90). Were the respondent State, without good cause, to prevent appellants from gaining access to documents in its possession which would have assisted them in defending their case, or to falsely deny their existence, this would have the effect of denying them a fair hearing, in violation of Article 6 § 1 (ibid.).
Assessment of the proceedings as a whole
Whether or not proceedings are fair is determined by examining them in their entirety (Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], 2012, § 197; Regner v. the Czech Republic [GC], 2017, §§ 151 and 161; Ankerl v. Switzerland, 1996, § 38). That being so, any shortcoming in the fairness of the proceedings may, under certain conditions, be remedied at a later stage, either at the same level (Helle v. Finland, 1997, §§ 46 and 54) or by a higher court (Schuler-Zgraggen v. Switzerland, 1993, § 52; contrast Albert and Le Compte v. Belgium, 1983, § 36; Feldbrugge v. the Netherlands, 1986, §§ 45-46).
In any event, if the defect lies at the level of the highest judicial body – for example because there is no possibility of replying to conclusions submitted to that body – there is an infringement of the right to a fair hearing (Ruiz-Mateos v. Spain, 1993, §§ 65-67).
A procedural flaw can be remedied only if the decision in issue is subject to review by an independent judicial body that has full jurisdiction and itself offers the guarantees required by Article 6 § 1. It is the scope of the appeal court’s power of review that matters, and this is examined in the light of the circumstances of the case (Obermeier v. Austria, 1990, § 70).25
Previous decisions which do not offer the guarantees of a fair hearing: in such cases no question arises if a remedy was available to the appellant before an independent judicial body which had full jurisdiction and itself provided the safeguards required by Article 6 § 1 (Oerlemans v. the Netherlands, 1991, §§ 53-58; British-American Tobacco Company Ltd v. the Netherlands, 1995, § 78). What counts is that such a remedy offering sufficient guarantees exists (Air Canada v. the United Kingdom, 1995, § 62).
The conduct of criminal proceedings may in some cases have a potential impact on the fairness of the determination of a “civil” dispute. In particular, the specific question of a civil party or civil rights associated with a criminal investigation procedure may raise an issue in terms of a fair trial if, during this preliminary stage of the criminal proceedings, civil rights are irretrievably undermined for the purposes of the subsequent civil dispute (see the applicable principles in Mihail Mihăilescu
v. Romania, 2021, §§ 74-89, including the question of res judicata, and the requisite level of protection, § 90, and also Victor Laurențiu Marin v. Romania, 2021, §§ 144-150, and Nicolae Virgiliu Tănase v. Romania [GC], 2019).
Before the appellate courts: Article 6 § 1 does not compel the Contracting States to set up courts of appeal or of cassation, but where such courts do exist the State is required to ensure that litigants before these courts enjoy the fundamental guarantees contained in Article 6 § 1 (Andrejeva v. Latvia [GC], 2009, § 97). However, the manner of application of Article 6 § 1 to proceedings before courts of appeal depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role played therein by the appellate court (Helmers v. Sweden, 1991, § 31) or the Court of Cassation (K.D.B. v. the Netherlands, 1998, § 41; Levages Prestations Services v. France, 1996, §§ 44-45).
Given the special nature of the Court of Cassation’s role, which is limited to reviewing whether the law has been correctly applied, the procedure followed may be more formal (ibid., § 48). Nevertheless, the rejection of a cassation appeal without an examination on the merits for failure to comply with a requirement prescribed by law must pursue a “legitimate aim” within the meaning of the case-law (Oorzhak v. Russia, 2021, §§ 20-22). The requirement to be represented by a specialist lawyer before the Court of Cassation is not in itself contrary to Article 6 (Bąkowska v. Poland, 2010, § 45; G.L. and S.L. v. France (dec.); Tabor v. Poland, § 42).
As a general rule it is for the national courts to assess the facts: is not the Court’s role to substitute its own assessment of the facts for that of the national courts (Dombo Beheer B.V. v. the Netherlands, 1993, § 31).26 Furthermore, while appellants have the right to present the observations which they regard as relevant to their case, Article 6 § 1 does not guarantee a litigant a favourable outcome (Andronicou and Constantinou v. Cyprus, 1997, § 201). In addition, Article 6 § 1 does not go so far as to require the courts to indicate in the text of their decisions the detailed arrangements and time-limits for appealing against them (Avotiņš v. Latvia [GC], 2016, § 123).
The Court may find that an applicant contributed to a large extent, as a result of his or her inaction and lack of diligence, to bringing about the situation complained of before it, which he or she could have prevented (Avotiņš v. Latvia [GC], 2016, §§ 123-24; Barik Edidi v. Spain (dec.), 2016, § 45; and contrast Zavodnik v. Slovenia, 2015, §§ 79-80). Errors committed during the proceedings may be mainly and objectively attributable to the individual (Zubac v. Croatia [GC], 2018, §§ 90 and 121, and for an application of this principle concerning an expert report, see Tabak v. Croatia, 2022, §§ 69 and
80). More problematic, however, are situations where procedural errors have occurred on the part of both the individual and the relevant authorities, in particular the court(s) (see Zubac v. Croatia [GC], 2018, §§ 91-95 and 114-121).
The parties to civil proceedings are required to show diligence in complying with the procedural steps relating to their case (Bąkowska v. Poland, 2010, § 54). In assessing whether the “requisite diligence” was displayed in pursuing the relevant procedural actions, it should be established whether or not the applicant was represented during the proceedings. Indeed, “procedural rights will usually go hand in hand with procedural obligations” (Zubac v. Croatia [GC], 2018, §§ 89 and 93). This also applies to prisoners, seeing that the concept of “diligence normally required from a party to civil proceedings” is a matter to be assessed in the context of imprisonment (compare Parol v. Poland, 2018, §§ 42-48, in particular § 47, and Kunert v. Poland, 2019, §§ 34-37, concerning prisoners who were not assisted by a lawyer).
The theory of appearances: the Court has stressed the importance of appearances in the administration of justice; it is important to make sure the fairness of the proceedings is apparent. The Court has also made it clear, however, that the standpoint of the persons concerned is not in itself decisive; the misgivings of the individuals before the courts with regard to the fairness of the proceedings must in addition be capable of being held to be objectively justified (Kraska v. Switzerland, 1993, § 32). It is therefore necessary to examine how the courts handled the case.
In other cases, before Supreme Courts, the Court has pointed out that the public’s increased sensitivity to the fair administration of justice justified the growing importance attached to appearances (Kress v. France [GC], 2001, § 82; Martinie v. France [GC], 2006, § 53; Menchinskaya v. Russia, 2009, § 32). The Court attached importance to appearances in these cases (see also Vermeulen v. Belgium, 1996, § 34; Lobo Machado v. Portugal, 1996, § 32).
In order to take the reality of the domestic legal order into account, the Court has always attached a certain importance to judicial practice in examining the compatibility of domestic law with Article 6 § 1 (Kerojärvi v. Finland, 1995, § 42; Gorou v. Greece (no. 2) [GC], 2009,
§ 32). Indeed, the general factual and legal background to the case should not be overlooked in the assessment of whether the litigants had a fair hearing (Stankiewicz v. Poland, 2006, § 70).
The State authorities cannot dispense with effective control by the courts on grounds of national security or terrorism27: there are techniques that can be employed which accommodate both legitimate security concerns and the individual’s procedural rights (Dağtekin and Others v. Turkey, 2007, § 34). For the case of a derogation under Article 15 of the Convention during a state of emergency, see Pişkin v. Turkey, 2020, § 153.
The Court has developed its case-law concerning allegations of media influence over civil proceedings Čivinskaitė v. Lithuania, 2020, § 122 and §§ 137-139, or comments made in a parliamentary inquiry report (§§ 124 et seq.) or public statements by State representatives and high- ranking policians (§§ 133 et seq.).
A principle independent of the outcome of the proceedings: the procedural guarantees of Article 6 § 1 apply to all litigants, not just those who have not won their cases in the national courts (Philis v. Greece (no. 2), 1997, § 45).
Notification at the correct address of the existence of proceedings: applicants must be given the opportunity to participate in the proceedings against them and to defend their interests. The competent authorities must therefore take the necessary steps to inform them of the proceedings concerning them (Dilipak and Karakaya v. Turkey, 2014, §§ 85-88, where insufficient efforts were made to identify the applicants’ correct address and it was subsequently impossible for them to appear at a new hearing, even though they had not waived that right; Bacaksız v. Turkey, 2019, § 53, and case-law references cited).
Civil proceedings conducted in absentia / civil judgment delivered in default: drawing inspiration from its case-law concerning criminal proceedings, the Court summarised the conditions in which such a situation would comply with Article 6 § 1 in Bacaksız v. Turkey, 2019, §§ 56-57 and 60, with reference in particular to Dilipak and Karakaya v. Turkey, 2014, §§ 78-80 (in Bacaksız, unlike in the previous cases, the applicant had subsequently been able to appear at a fresh hearing, §§ 62-65).
Lack of legal aid
This may raise the question whether the defendant in civil proceedings was able to present an effective defence (McVicar v. the United Kingdom, 2002, § 50; Timofeyev and Postupkin v. Russia, 2021, §§ 101-107).
Observations submitted by the court to the appellate court manifestly aimed at influencing its decision: the parties must be able to comment on the observations, irrespective of their actual effect on the court, and even if the observations do not present any fact or argument which has not already appeared in the impugned decision in the opinion of the appellate court (Nideröst-Huber v. Switzerland, 1997, §§ 26-32) or of the respondent Government before the Strasbourg Court (APEH Üldözötteinek Szövetsége and Others v. Hungary, 2000, § 42).
The Convention does not guarantee, as such, any right to have a case referred by a domestic court for a preliminary ruling from another national authority (including a constitutional court: Xero Flor w Polsce sp. z o.o. v. Poland, 2021, § 166) or international authority (Coëme and Others v. Belgium, 2000, § 114; Acar and Others v. Turkey (dec.), 2017, § 43).
Article 6 § 1 does not, therefore, guarantee an absolute right to have a case referred by a domestic court to the Court of Justice of the European Union (CJEU)28 (Dotta v. Italy (dec.), 1999; Herma v. Germany (dec.), 2009). It is for the applicant to provide explicit reasons for such a request (John v. Germany (dec.), 2007; Somorjai v. Hungary, 2018, § 60). The review of the soundness of the interpretation of European Union (EU) law by the national courts is a matter falling outside the Strasbourg Court’s jurisdiction (§ 54).
Where a preliminary reference mechanism exists, refusal by a domestic court to grant a request for such a referral may, in certain circumstances, infringe the fairness of proceedings (Ullens de Schooten and Rezabek v. Belgium, 2011, §§ 57-67, with further references; Canela Santiago v. Spain (dec.), 2001). This is so where the refusal is found to be arbitrary, that is to say, where there has been a refusal even though the applicable rules allow no exception or alternative to the principle of preliminary reference, where the refusal was based on reasons other than those provided for by such rules, or where the refusal was not duly reasoned in accordance with those rules (Ullens de Schooten and Rezabek v. Belgium, 2011, § 59).
The Court examines whether the refusal appears to be arbitrary, applying the above-mentioned case-law (Canela Santiago v. Spain (déc.), 2001). As regards the provision of reasons for a refusal by a national court to refer a question to the CJEU for a preliminary ruling in a decision not subject to appeal, the Ullens de Schooten and Rezabek v. Belgium, 2011, judgment, referred to, inter alia, in Somorjai v. Hungary, 2018, §§ 57 and 62 (and the references cited), noted the following
- Article 6 § 1 requires the domestic courts to give reasons, in the light of the applicable law, for any decision refusing to refer a question for a preliminary ruling;
- when the Strasbourg Court hears a complaint alleging a violation of Article 6 § 1 on this basis, its task consists in ensuring that the impugned refusal has been duly accompanied by such reasoning;
- while this verification has to be made thoroughly, it is not for the Court to examine any errors that might have been committed by the domestic courts in interpreting or applying the relevant law (Repcevirág Szövetkezet v. Hungary, 2019, § 59) ;
- in the specific context of the third paragraph of Article 234 of the Treaty establishing the European Community (now Article 267 of the TFEU), national courts within the European Union against whose decisions there is no judicial remedy under national law, and which refuse to request a preliminary ruling from the CJEU on a question raised before them concerning the interpretation of European Union law, are required to give reasons for such refusal in the light of the exceptions provided for by the case-law of the CJEU in accordance with the Cilfit criteria (Somorjai v. Hungary, 2018, §§ 39-41). They must therefore indicate the reasons why they have found that the question is irrelevant, that the European Union law provision in question has already been interpreted by the CJEU, or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt.
The reasons given in the decision by the court of final instance refusing to refer a case to the CJEU for a preliminary ruling are to be assessed in the light of the circumstances of the case and the domestic proceedings as a whole (Krikorian v. France (dec.), 2013, § 99; Harisch v. Germany, 2019, § 42; Repcevirág Szövetkezet v. Hungary, 2019, § 59).
The Court has accepted summary reasoning where the appeal on the merits itself had no prospect of success, such that a reference for a preliminary ruling would have had no impact on the outcome of the case (Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), 2013, § 173-174, and, mutatis mutandis, in criminal matters, Baydar v. the Netherlands, 2018, §§ 48-49), for example where the appeal did not satisfy the domestic admissibility criteria (Astikos Kai Paratheristikos Oikodomikos Synetairismos Axiomatikon and Karagiorgos v. Greece (dec.), 2017, §§ 46-47). The Court also accepts that, in concreto, the reasons for refusing a request for a preliminary ruling in the light of the Cilfit criteria may be inferred from the reasoning of the rest of the judgment of the court concerned (Krikorian v. France (dec.), 2013, §§ 97-99; Harisch v. Germany, 2019, §§ 37- 42; and Ogieriakhi v. Ireland (dec.), 2019, § 62), or from somewhat implicit reasoning in the decision refusing the request (Repcevirág Szövetkezet v. Hungary, 2019, §§ 57-58).
In the case of Dhahbi v. Italy, 2014, §§ 32-34, the Court for the first time found a violation of Article 6 on account of the lack of reasons given by a domestic court for refusing to refer a question to the CJEU for a preliminary ruling. The Court of Cassation had made no reference to the applicant’s request for a preliminary ruling or to the reasons why it had considered that the question raised did not warrant referral to the CJEU, or reference to the CJEU’s case-law. It was therefore unclear from the reasoning of the impugned judgment whether that question had been considered not to be relevant or to relate to a provision which was clear or had already been interpreted by the CJEU, or whether it had simply been ignored (see also Schipani and Others v. Italy, 2015, §§ 71-72). In Sanofi Pasteur v. France, 2020, §§ 74-79, the Court also found a violation on account of the lack of sufficient reasoning where the Court of Cassation’s judgment had contained a reference to the applicant company’s requests for a preliminary ruling through the phrase “without it being necessary to refer a question to the Court of Justice of the European Union for a preliminary ruling”.
In addition, where a party to civil proceedings raises a specific constitutional issue of importance for the determination of a case and requests that this issue be referred to the Constitutional Court for examination, a domestic court has to provide specific reasons justifying its refusal to refer the question, thus indicating that it has carried out a rigorous examination of the matter (Xero Flor w Polsce sp. z o.o. v. Poland, 2021, §§ 171-172).
Changes in domestic case-law
The requirement of legal certainty and the protection of legitimate expectations do not involve the right to an established jurisprudence (Unédic v. France, 2008, § 74). Case-law development is not, in itself, contrary to the proper administration of justice (Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, § 116), since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement (Nejdet Şahin and Perihan Şahin v. Turkey [GC], 2011, § 58; Albu and Others v. Romania, 2012, § 34).
In Atanasovski v. the former Yugoslav Republic of Macedonia, 2010, § 38, the Court held that the existence of well- established jurisprudence imposed a duty on the Supreme Court to make a more substantial statement of reasons justifying its departure from the case-law, failing which the individual’s right to a duly reasoned decision would be violated. In some cases changes in domestic jurisprudence which affect pending civil proceedings may violate the Convention (Petko Petkov v. Bulgaria, 2013, §§ 32- 34).
Divergences in case-law between domestic courts or within the same court cannot, in themselves, be considered contrary to the Convention (Nejdet Şahin and Perihan Şahin v. Turkey [GC], 2011, § 51, and Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, § 116). 30 However, the Court has emphasised the importance of putting mechanisms in place to ensure consistency in court practice and uniformity of the courts’ case-law (Svilengaćanin and Others v. Serbia, 2021, § 82). It is the Contracting States’ responsibility to organise their legal systems in such a way as to avoid the adoption of discordant judgments (Nejdet Şahin and Perihan Şahin v. Turkey [GC], 2011, § 55). The role of a supreme court is precisely to resolve possible contradictions or uncertainties resulting from judgments containing divergent interpretations (Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, § 123, and case-law references cited, and, for example, Svilengaćanin and Others v. Serbia, 2021, § 81).
It is not in principle the Court’s function to compare different decisions of national courts, even if given in apparently similar or connected proceedings; it must respect the independence of those courts. It has pointed out that giving two disputes different treatment cannot be considered to give rise to conflicting case-law when this is justified by a difference in the factual situations at issue (Ferreira Santos Pardal v. Portugal, 2015, § 42, and Hayati Çelebi and Others v. Turkey, 2016, § 52). – The case of Nejdet Şahin and Perihan Şahin v. Turkey [GC], 2011, concerned judgments of two separate, independent and hierarchically unrelated supreme courts. The Court held in particular that an individual petition to it could not be used as a means of dealing with or eliminating conflicts of case-law that could arise in domestic law, or as a review mechanism for rectifying inconsistencies in the decisions of the different domestic courts (§ 95).
– The case of Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, concerned profound and long-standing differences in the case-law of a single court – the Supreme Court – and the failure to use a mechanism for ensuring harmonisation of the case-law. The Court stressed the importance of ensuring consistent practice within the highest court in the country, to avoid the risk of undermining the principle of legal certainty. That principle, which is implicit in all the Articles of the Convention, constitutes one of the fundamental aspects of the rule of law (Guðmundur Andri Ástráðsson v. Iceland [GC], 2020, § 238). The persistence of conflicting court decisions can create a state of legal uncertainty likely to reduce public confidence in the judicial system, whereas such confidence is clearly one of the essential components of a State based on the rule of law (§ 116) (see also Sine Tsaggarakis A.E.E.
v. Greece, 2019, §§ 51-59, concerning the persistently divergent positions taken by two different sections of the Supreme Administrative Court despite the institution of a mechanism for harmonising the case-law).
Allegations of a conflict between two court decisions: inconsistency in the reasons given for the decisions is not sufficient for there to be a breach of the res judicata principle; it must also be ascertained whether the cases brought before the courts were identical, that is, between the same parties and with the same subject matter, but were resolved differently (Krivtsova v. Russia, 2022,
Interpretation of a judgment of the Strasbourg Court by a national court
In Bochan v. Ukraine (no. 2) [GC], 2015, the applicable legal framework provided the applicant with a remedy enabling a judicial review of her civil case by the Supreme Court in the light of a finding of a violation by the Strasbourg Court. The Court nevertheless found that the Supreme Court had “grossly misrepresented” the findings reached in its judgment. This did not amount merely to a different reading of a legal text but to an incorrect interpretation. The domestic court’s reasoning could therefore only be regarded as being “grossly arbitrary” or as entailing a “denial of justice” in breach of Article 6 (ibid. [GC], §§ 63- 65).
Entry into force of a law when a case to which the State is a party is still pending: the Court is especially mindful of the dangers inherent in the use of retrospective legislation which has the effect of influencing the judicial determination of a dispute to which the State is a party, including where the effect is to make pending litigation unwinnable. Any reasons adduced to justify such measures must be closely examined (National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 1997, § 112). In principle the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws. Article 6 does, however preclude any interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute – except on “compelling grounds of the general interest” (Zielinski, Pradal, Gonzalez and Others v. France [GC], 1999, § 57; Scordino v. Italy (no. 1) [GC], 2006, § 126).
The Court found violations, for example, in respect of:
- intervention by the legislature – at a time when proceedings to which the State was party had been pending for nine years and the applicants had a final, enforceable judgment against the State – to influence the imminent outcome of the case in the State’s favour (Stran Greek Refineries and Stratis Andreadis v. Greece, 1994, §§ 49-50);
- a law which decisively influenced the imminent outcome of a case favour of the State (Zielinski, Pradal, Gonzalez and Others v. France [GC], 1999, § 59);
- the enactment, at a crucial point in proceedings before the Court of Cassation, of a law which for practical purposes resolved substantive issues and made carrying on with the litigation pointless (Papageorgiou v. Greece, 1997);
- decision of an appellate court based, even subsidiarily, on a law enacted in the course of proceedings and which affected the outcome of the proceedings (Anagnostopoulos and Others v. Greece, 2000, §§ 20-21);
- recourse by the State to retrospective legislation influencing the judicial determination of a pending dispute to which the State was a party, without demonstrating that there were “compelling general-interest reasons” for such action. The Court pointed out, in particular, that financial considerations could not by themselves warrant the legislature taking the place of the courts in order to settle disputes (Azienda Agricola Silverfunghi S.a.s. and Others v. Italy, 2014, §§ 76 and 88-89).
However, Article 6 § 1 cannot be interpreted as preventing any interference by the authorities with pending legal proceedings to which they are party. In other cases the Court has held that the considerations relied on by the respondent State were based on the compelling public-interest motives required to justify the retroactive effect of the law (National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 1997, § 112; Forrer-Niedenthal v. Germany, 2003, § 64; OGIS-Institut Stanislas, OGEC Saint-Pie X and Blanche de Castille and Others v. France, 2004, §§ 71-72; EEG-Slachthuis Verbist Izegem v. Belgium (dec.), 2005; Hôpital local Saint-Pierre d’Oléron and Others v. France, 2018, §§ 72-73).
This case-law also applies to cases where the State, although not a party, vitiates the proceedings through its legislative powers (Ducret v. France, 2007, §§ 33-42).
Other types of legislative intervention
- Laws may be enacted before the start of proceedings (Organisation nationale des syndicats d’infirmiers libéraux (ONSIL) v. France (dec.), 2000) – compare with Azzopardi and Others v. Malta (dec.), 2019, § 44) – or once they have ended (Preda and Dardari v. Italy (dec.), 1999), without raising an issue under Article 6.
- The enactment of general legislation may prove unfavourable to litigants without actually targeting pending judicial proceedings and thereby circumventing the principle of the rule of law (Gorraiz Lizarraga and Others v. Spain, 2004, § 72).
- A law with retrospective effect may be passed following a pilot judgment of the Court in order to remedy a systemic problem and thus respond to an obvious and compelling public- interest justification (Beshiri and Others v. Albania (dec.), 2020, concerning the prolonged non-enforcement of numerous final administrative decisions).
- A law may be declared unconstitutional while proceedings are pending without there being any intention of influencing those proceedings (Dolca and Others v. Romania (dec.), 2012).
It should be noted that as regards the above-mentioned public-interest considerations to be taken into account in examining the justification of legislative intervention, the Court has specified that environmental protection is a matter of general interest (Dimopulos v. Turkey, 2019, §§ 39-40).
Failure to communicate the observations of an “independent member of the national legal service” to litigants before a Supreme Court (members of the public prosecutor’s department: Vermeulen v. Belgium, 1996; Van Orshoven v. Belgium, 1997; K.D.B. v. the Netherlands, 1998; Principal Public Prosecutor/Attorney General: Göç v. Turkey [GC], 2002; Lobo Machado v. Portugal, 1996; Government Commissioner: Kress v. France [GC], 2001; Martinie v. France [GC], 2006) and no opportunity to reply to such observations: many respondent States have argued that this category of members of the national legal service was neither party to the proceedings nor the ally or adversary of any party, but the Court has found that regard must be had to the part actually played in the proceedings by the official concerned, and more particularly to the content and effects of his submissions (Kress v. France [GC], 2001, § 71 in fine; Yvon v. France, 2003, § 33; Vermeulen v. Belgium, 1996, § 31). For a general overview of the case-law concerning the participation in proceedings of an independent member of the national legal service, see Kramareva v. Russia, 2022, §§ 31-34, and for application of the case-law to a public prosecutor, see §§ 38 et seq.
The Court has stressed the importance of adversarial proceedings in cases where the submissions of an independent member of the national legal service in a civil case were not communicated in advance to the parties, depriving them of an opportunity to reply to them (ibid.,§ 76; Göç v. Turkey [GC], 2002, §§ 55-56; Lobo Machado v. Portugal, 1996, § 31; Van Orshoven v. Belgium, 1996, § 41; Immeubles Groupe Kosser v. France, 2002, § 26).
Participation by and even the mere presence of these members of the national legal service in the deliberations, be it “active” or “passive”, after they have publicly expressed their views on the case has been condemned (Kress v. France [GC], 2001, § 87; Van Orshoven v. Belgium, 1996, § 34; Lobo Machado v. Portugal, 1996, § 32). This case-law is largely based on the theory of appearances (Martinie v. France [GC], 2006, § 53).
The conditions in which the proceedings took place must therefore be examined, and in particular whether the proceedings were adversarial and complied with the equality of arms principle (compare Kress v. France [GC], 2001, § 76, and Göç v. Turkey [GC], 2002, §§ 55-57; see also Marc-Antoine v. France (dec.), 2013), in order to determine whether the situation was attributable to the litigant’s conduct, or to the attitude of the authorities or the applicable legislation (Fretté v. France, 2002, §§ 49-51).
For the procedure before the Court of Justice of the European Communities/of the European Union: Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij U.A. v. Netherlands (dec.), 2009.31
Equality of arms does not entail a party’s right to have disclosed to him or her, before the hearing, submissions which have not been disclosed to the other party to the proceedings or to the reporting judge or the judges of the trial bench (Kress v. France [GC], 2001, § 73).
There is no point in recognising a right that has no real reach or substance: that would be the case if the right relied on under the Convention would have had no incidence on the outcome of the case because the legal solution adopted was legally unobjectionable (Stepinska v. France, 2004, § 18).
With reference again to situations where the applicant – who was party to the domestic proceedings – has complained that he or she did not receive a copy of evidence or observations sent to the judge, the Court has in some cases applied the new “significant disadvantage” admissibility criterion (Article 35 § 3 (b) of the Convention), which was introduced in 2010.
According to this criterion, a violation of a right, however real from a purely legal point of view, must attain a minimum level of severity to warrant consideration by the Court, in accordance with the principle de minimis non curat praetor. In that context, complaints concerning the failure to provide applicants with a copy of evidence adduced or observations filed have been declared inadmissible by the Court for lack of a significant disadvantage (Holub v. the Czech Republic (dec), 2010; Liga Portuguesa de Futebol Profissional v. Portugal (dec.), 2012, §§ 36-40; Kılıç and Others v. Turkey (dec.), 2013; and contrast Colloredo Mannsfeld v. the Czech Republic, 2016, §§ 33-34). This approach has been applied, for example, where the document in question contained nothing new for the applicant and clearly had no influence, through its nature or content, on the court’s decision; this is even more evident where the national court has itself stated that it did not take into account the document which was not communicated to the applicant (Cavajda v. the Czech Republic (dec.), 2011.
The fact that a similar point of view is defended before a court by several parties does not necessarily place the opposing party in a position of “substantial disadvantage” when presenting his or her case (Yvon v. France, 2003, § 32 in fine).
Fourth instance General principles
One particular category of complaints submitted to the Court comprises what are commonly referred to as “fourth-instance” complaints. This term – which does not feature in the text of the Convention and has become established through the case-law of the Convention institutions (De Tommaso v. Italy [GC], 2017, § 170); Kemmache v. France (no. 3), 1994, § 44)– is somewhat paradoxical, as it places the emphasis on what the Court is not: it is not a court of appeal or a court which can quash rulings given by the courts in the States Parties to the Convention or retry cases heard by them, nor can it re-examine cases in the same way as a Supreme Court. Fourth-instance applications therefore stem from a frequent misapprehension on two levels.
Firstly, there is often a widespread misconception on the part of the applicants as to the Court’s role and the nature of the judicial machinery established by the Convention. It is not the Court’s role to substitute itself for the domestic courts; its powers are limited to verifying the Contracting States’ compliance with the human rights engagements they undertook in acceding to the Convention. Furthermore, in the absence of powers to intervene directly in the legal systems of the Contracting States, the Court must respect the autonomy of those legal systems.
That means that it is not its task to deal with errors of fact or law allegedly committed by a national court unless and in so far as such errors may have infringed rights and freedoms protected by the Convention. It may not itself assess the facts which have led a national court to adopt one decision rather than another. If it were otherwise, the Court would be acting as a court of third or fourth instance, which would be to disregard the limits imposed on its action (García Ruiz v. Spain [GC], 1999, § 28; Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], 2012, § 197; Avotiņš v. Latvia [GC], 2016, § 99; Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, § 90; De Tommaso v. Italy [GC], 2017, §§ 170-72).
Secondly, there is often misunderstanding as to the exact meaning of the term “fair” in Article 6 § 1 of the Convention. The “fairness” required by Article 6 § 1 is not “substantive” fairness, a concept which is part-legal, part-ethical and can only be applied by the trial court (see Ballıktaş Bingöllü v. Turkey, 2021, § 78). Article 6 § 1 only guarantees “procedural” fairness, which translates in practical terms into adversarial proceedings in which submissions are heard from the parties and they are placed on an equal footing before the court (Star Cate Epilekta Gevmata and Others v. Greece (dec.), 2010). The fairness of proceedings is always assessed by examining them in their entirety, so that an isolated irregularity may not be sufficient to render the proceedings as a whole unfair (Miroļubovs and Others v. Latvia, 2009, § 103).
Furthermore, the Court respects the diversity of Europe’s legal and judicial systems, and it is not the Court’s task to standardise them. Just as it is not its task to examine the wisdom of the domestic courts’ decisions where there is no evidence of arbitrariness (Nejdet Şahin and Perihan Şahin v. Turkey [GC], 2011, §§ 68, 89 and 94).
Scope and limits of the Court’s supervision
It is primarily for the national authorities, in particular the courts, to interpret, and assess compliance with, domestic law (Ramos Nunes de Carvalho e Sá v. Portugal [GC], 2018, § 186, and Guðmundur Andri Ástráðsson v. Iceland [GC], 2020, § 251), and it is ultimately for the Court to determine whether the way in which that law is interpreted and applied produces consequences that are consistent with the principles of the Convention (see, for example, Scordino v. Italy (no. 1) [GC], 2006, § 191), in its capacity as the ultimate authority on the application and interpretation of the Convention (Guðmundur Andri Ástráðsson v. Iceland [GC], 2020, § 286), and by virtue of the principle of subsidiarity and “shared responsibility” between the States Parties and the Court (§ 250). Being mindful of its subsidiary role, the Court will not engage in matters of constitutional interpretation and will limit its task to the interpretation and application of the Convention as provided for in Article 32 of the Convention, in the light of the principle of the rule of law (Grzęda v. Poland [GC], 2022, § 341).
The Court has always said that it is generally not its task to deal with errors of fact or law allegedly committed by a national court unless and in so far as such errors are manifest and infringed rights and freedoms protected by the Convention (García Ruiz v. Spain [GC], 1999, § 28; Perez v. France [GC], 2004, § 82; De Tommaso v. Italy [GC], 2017, § 170). That being so, the Court cannot call into question the findings of the domestic authorities on alleged errors of law unless they are “arbitrary or manifestly unreasonable” (Scordino v. Italy (no. 1) [GC], 2006, § 191, and Naït-Liman v. Switzerland [GC], 2018, § 116), which added that a clear error in assessment on the part of the domestic courts could also arise as a result of a misapplication or misinterpretation of the Court’s case-law). The Court’s sole task in connection with Article 6 is to examine applications alleging that the domestic courts have failed to observe “specific procedural safeguards” laid down in that Article or that “the conduct of the proceedings as a whole did not guarantee the applicant a fair hearing” (De Tommaso v. Italy [GC], 2017, § 171).
That being so, it is extremely rare for the Court to question under Article 6 § 1 the national courts’ assessment on the grounds that their findings might be regarded as arbitrary or manifestly unreasonable.
This was the case, for example, in Dulaurans v. France, 2000, § 38 (see also Tel v. Turkey, 2017, § 76), where the Court found a violation of Article 6 § 1 because of a “manifest error of judgment” – that is, an error of fact or law by the national court that is so “evident” as to be characterised as “manifest” in the sense that no reasonable court could ever have made it, as underlined in Bochan v. Ukraine (no. 2) [GC], 2015, § 61; Khamidov v. Russia, 2007, § 170, where the proceedings complained of had been “grossly arbitrary”; Anđelković v. Serbia, 2013, § 24, and Lazarević v. Bosnia and Herzegovina, 2020, § 32, where there had been a “denial of justice”; Bochan v. Ukraine (no. 2) [GC], 2015, where the domestic court’s reasoning was regarded as being “grossly arbitrary” or as entailing a “denial of justice”: see §§ 63-65 and the cases cited above, and Ballıktaş Bingöllü v. Turkey, 2021, §§ 77-78 (and contrast, for example, Ballıktaş Bingöllü v. Turkey, 2021, § 82, and Société anonyme d’habitations à loyers modérés Terre et Famille v. France (dec.), 2004). In Baljak and Others v. Croatia, 2021, the Court found that the domestic courts’ conclusions had been “manifestly unreasonable”, referring in particular to its case-law under Article 2 of the Convention and the fact that the courts had imposed an unattainable standard of proof on the applicants (§ 41).
Along similar lines, in Carmel Saliba v. Malta, 2016, the Court found it unacceptable for a judgment to be given against an applicant in civil proceedings without any convincing reasons, on the basis of inconsistent and conflicting evidence, while disregarding the applicant’s counter-arguments (§ 79).
Lastly, in this context, a lack of judicial coordination and diligence may have had an undeniable impact on the applicant’s fate (Tel v. Turkey, 2017, § 67).
In conclusion, a “denial of justice” will occur if no reasons are provided or the reasons given are based on a “manifest” factual or legal error committed by the domestic court (Ballıktaş Bingöllü v. Turkey, 2021, § 77, referring to Moreira Ferreira v. Portugal (no. 2) [GC], 2017, § 85, in the criminal sphere).
Returning to the principle, the Court may not, as a general rule, question the findings and conclusions of the domestic courts as regards:
The establishment of the facts of the case: as a general rule, the assessment of the facts is within the province of the national courts (Van de Hurk v. the Netherlands, 1994, § 61); the Court cannot challenge the findings of the domestic courts, save where they are flagrantly and manifestly arbitrary (García Ruiz v. Spain [GC], 1999, §§ 28-29; Radomilja and Others v. Croatia [GC], 2018, § 150).
The interpretation and application of domestic law: it is primarily for the domestic courts to resolve problems of interpretation of national legislation (Perez v. France [GC], 2004, § 82), not for the Strasbourg Court, whose role is to verify whether the effects of such interpretation are compatible with the Convention (Nejdet Şahin and Perihan Şahin v. Turkey [GC], 2011, § 49). In exceptional cases the Court may draw the appropriate conclusions where a Contracting State’s courts have interpreted domestic law in an arbitrary or manifestly unreasonable manner (Barać and Others v. Montenegro, 2011, §§ 32-34, with further references; Anđelković v. Serbia, 2013, §§ 24-27 (denial of justice); Laskowska v. Poland, 2007, § 61, and the cases cited above), and this principle is also applicable under other provisions of the Convention (S., v. and A. v. Denmark [GC], 2012, § 148 and the reference cited; Fabris v. France [GC], 2013, § 60; or Anheuser-Busch Inc. v. Portugal [GC], 2007, §§ 85-86; see also Kushoglu v. Bulgaria, 2007, § 50; Işyar v. Bulgaria, 2008, § 48).
Nor is the Court competent to rule formally on compliance with other international treaties or European Union law (although it should be borne in mind that the member States must abide by their international obligations: Grzęda v. Poland [GC], 2022, § 340). The task of interpreting and applying the provisions of the European Union law falls firstly to the CJEU.32 The jurisdiction of the European Court of Human Rights is limited to reviewing compliance with the requirements of the Convention, for example with Article 6 § 1. Consequently, in the absence of any arbitrariness which would in itself raise an issue under Article 6 § 1, it is not for the Court to make a judgment as to whether the domestic court correctly applied a provision of European Union law (Avotiņš v. Latvia [GC], 2016, § 100), general international law or international agreements (Waite and Kennedy v. Germany [GC], 1999, § 54; Markovic and Others v. Italy [GC], 2006, §§ 107-108). However, divergences in the case-law of the national courts create legal uncertainty, which is incompatible with the requirements of the rule of law (mutatis mutandis, Molla Sali v. Greece [GC], 2018, § 153).
The admissibility and assessment of evidence:33 the guarantees under Article 6 § 1 only cover the administration of evidence at the procedural level. The admissibility of evidence or the way it should be assessed on the merits are primarily matters for the national courts, whose task it is to weigh the evidence before them (García Ruiz v. Spain [GC], 1999, § 28; Farange
S.A. v. France (dec.), 2004). The reasons they provide in this regard are nevertheless important for the purposes of Article 6 § 1 and call for the Court’s scrutiny (see, for example, Carmel Saliba v. Malta, 2016, §§ 69-73).
In Al-Dulimi and Montana Management Inc. v. Switzerland [GC], 2016, the Court reiterated that, the Convention being a constitutional instrument of European public order, the States Parties were required, in that context, to ensure a level of scrutiny of Convention compliance which, at the very least, preserved the foundations of that public order. One of the fundamental components of European public order is the principle of the rule of law, and arbitrariness constitutes the negation of that principle. Even in the context of interpreting and applying domestic law, where the Court leaves the national authorities very wide discretion, it always does so, expressly or implicitly, subject to a prohibition of arbitrariness (§ 145).
So Article 6 § 1 does not allow the Court to question the substantive fairness of the outcome of a civil dispute, where more often than not one of the parties wins and the other loses.
A fourth-instance complaint under Article 6 § 1 of the Convention will be rejected by the Court on the grounds that the applicant had the benefit of adversarial proceedings; that he was able, at the various stages of those proceedings, to adduce the arguments and evidence he considered relevant to his case; that he had the opportunity of challenging effectively the arguments and evidence adduced by the opposing party; that all his arguments which, viewed objectively, were relevant to the resolution of the case were duly heard and examined by the courts; that the factual and legal reasons for the impugned decision were set out at length; and that, accordingly, the proceedings taken as a whole were fair (García Ruiz v. Spain [GC], 1999, § 29). The majority of fourth-instance applications are declared inadmissible de plano by a single judge or a three-judge Committee (Articles 27 and 28 of the Convention).
Consistency of domestic case-law
Article 6 § 1 does not confer an acquired right to consistency of case-law. Case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement (Nejdet Şahin and Perihan Şahin v. Turkey [GC], 2011, § 58; Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, § 116). Divergences in case-law are, by nature, an inherent consequence of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. The role of a supreme court is precisely to resolve such conflicts (Beian v. Romania (no. 1), 2007, § 37; Svilengaćanin and Others v. Serbia, 2021, §§ 81-82).
106. In principle it is not the Court’s role, even in cases which at first sight appear comparable or connected, to compare the various decisions pronounced by the domestic courts, whose independence it must respect. The possibility of divergences in case-law is an inherent consequence of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. Such divergences may even arise within the same court. That in itself cannot be considered contrary to the Convention (Santos Pinto v. Portugal, 2008, § 41). Furthermore, there can be no “divergence” where the factual situations in issue are objectively different (Uçar v. Turkey (dec.), 2009).
There may, however, be cases where divergences in case-law lead to a finding of a violation of Article 6 § 1. Here the Court’s approach differs depending on whether the divergences exist within the same branch of courts or between two different branches of court which are completely independent from one another.
In the first case (divergences in the case-law of the highest national court), the Court uses three criteria in determining:
- whether the divergences in the case-law are “profound and long-standing”;
- whether the domestic law provides for mechanisms capable of resolving such inconsistencies; and
- whether those mechanisms were applied and to what effect (Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, §§ 116-35; Beian v. Romania (no. 1), 2007, §§ 37 and 39).
In the last-mentioned case, the highest national court had adopted judgments that were “diametrically opposed” and the mechanism provided for in domestic law for ensuring consistent practice had not been used promptly, thus undermining the principle of legal certainty.
A practice of profound and long-standing differences which has developed within the country’s highest judicial authority is in itself contrary to the principle of legal certainty, a principle which is implicit in all the Articles of the Convention and constitutes one of the basic elements of the rule of law (Guðmundur Andri Ástráðsson v. Iceland [GC], 2020, § 238, as regards the principle; Beian v. Romania (no. 1), 2007, § 39).
In the case cited, the Court noted that instead of fulfilling its task of establishing the interpretation to be pursued, the Supreme Court had itself become a source of legal uncertainty, thereby undermining public confidence in the judicial system. The Court found that this lack of certainty with regard to the case-law had had the effect of depriving the applicant of any possibility of securing the benefits provided for by law, whereas other persons in a similar situation had been granted those benefits (§§ 39-40).
In Hayati Çelebi and Others v. Turkey, 2016, manifest contradictions in the case-law of the Court of Cassation, together with the failure of the mechanism designed to ensure harmonisation of practice within that court, led to the applicants’ claim for damages being declared inadmissible, whereas other people in a similar situation had secured a review of the merits of their claims (§ 66).
However, where the system established in domestic law to settle case-law conflicts has proved effective, since it was introduced fairly quickly and put an end to such conflicts within a short space of time, the Court has not found a violation (Albu and Others v. Romania, 2012, § 42; compare Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, §§ 130-132).
In the second situation, the conflicting decisions are pronounced at last instance by courts in two different branches of the legal system, each with its own independent Supreme Court not subject to any common judicial hierarchy. Here Article 6 § 1 does not go as far as to demand the implementation of a vertical review mechanism or a common regulatory authority (such as a jurisdiction disputes court). In a judicial system with several different branches of courts, and where several Supreme Courts exist side by side and are required to give interpretations of the law at the same time and in parallel, achieving consistency of case-law may take time, and periods of conflicting case-law may therefore be tolerated without undermining legal certainty. So two courts, each with its own area of jurisdiction, examining different cases may very well arrive at divergent but nevertheless rational and reasoned conclusions regarding the same legal issue raised by similar factual circumstances without violating Article 6 § 1 (Nejdet Şahin and Perihan Şahin v. Turkey [GC], 2011, §§ 81-83 and 86).
The adversarial principle: the concept of a fair trial comprises the fundamental right to adversarial proceedings. This is closely linked to the principle of equality of arms (Regner v. the Czech Republic [GC], 2017, § 146). In accordance with the right to adversarial proceedings and the right of access to a court, litigants represented by persons dependent to varying degrees on the other party to the proceedings would not be able to state their case and protect their interests in proper conditions (Capital Bank AD v. Bulgaria, 2005, § 118).
The requirements resulting from the right to adversarial proceedings are in principle the same in both civil and criminal cases (Werner v. Austria, 1997, § 66).
114. The desire to save time and expedite the proceedings does not justify disregarding such a fundamental principle as the right to adversarial proceedings (Nideröst-Huber v. Switzerland, 1997, § 30).
Content (subject to the limits outlined below): the right to adversarial proceedings means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the court’s decision (Kress v. France [GC], 2001, § 74; Ruiz-Mateos
v. Spain, 1993, § 63; McMichael v. the United Kingdom, 1995, § 80; Vermeulen v. Belgium, 1996, § 33; Lobo Machado v. Portugal, 1996, § 31). This requirement may also apply before a Constitutional Court (Milatová and Others v. the Czech Republic, 2005, §§ 63-66; Gaspari v. Slovenia, 2009, § 53).
- The actual effect on the court’s decision is of little consequence (Nideröst-Huber v. Switzerland, 1997, § 27; Ziegler v. Switzerland, 2002, § 38).The adversarial principle is just as valid for the parties to the proceedings as it is for an independent member of the national legal service, a representative of the administration, the lower court or the court hearing the case (Köksoy v. Turkey, 2020, §§ 34-35 and case-law references cited).
- The right to adversarial proceedings must be capable of being exercised in satisfactory conditions: a party to the proceedings must have the possibility to familiarise itself with the evidence before the court, as well as the possibility to comment on its existence, contents and authenticity in an appropriate form and within an appropriate time (Krčmář and Others v. the Czech Republic, 2000, § 42; Immeubles Groupe Kosser v. France, 2002, § 26), if necessary by obtaining an adjournment (Yvon v. France, 2003, § 39).
- The parties should have the opportunity to make known any evidence needed for their claims to succeed (Clinique des Acacias and Others v. France, 2005, § 37).
- The court itself must respect the adversarial principle, for example if it decides a case on the basis of a ground or objection which it has raised of its own motion (Čepek v. the Czech Republic, 2013, § 45, and compare Clinique des Acacias and Others v. France, 2005, § 38, with Andret and Others v. France (dec.), 2004, inadmissible: in the last-mentioned case the Court of Cassation informed the parties that new grounds were envisaged and the applicants had an opportunity to reply before the Court of Cassation gave judgment).
- It is for the parties to a dispute alone to decide whether a document produced by the other party or evidence given by witnesses calls for their comments. Litigants’ confidence in the workings of justice is based on the knowledge that they have had the opportunity to express their views on every document in the file (including documents obtained by the court of its own motion: K.S. v. Finland, 2001, § 22; Nideröst-Huber v. Switzerland, 1997, § 29; Pellegrini
v. Italy, 2001, § 45).
Examples of infringement of the right to adversarial proceedings as a result of non-disclosure of the following documents or evidence:
- in proceedings concerning the placement of a child, of reports by the social services containing information about the child and details of the background to the case and making recommendations, even though the parents were informed of their content at the hearing (McMichael v. the United Kingdom, 1995, § 80);
- evidence adduced by the public prosecutor, irrespective of whether he was or was not regarded as a “party”, since he was in a position, above all by virtue of the authority conferred on him by his functions, to influence the court’s decision in a manner that might be unfavourable to the person concerned (Ferreira Alves v. Portugal (no. 3), 2007, §§ 36-39);
- a note from the lower court to the appellate court aimed at influencing the latter court’s decision, even though the note did not set out any new facts or arguments (ibid., § 41);
- documents obtained directly by the judges, containing reasoned opinions on the merits of the case (K.S. v. Finland, 2001, §§ 23-24).
The right to adversarial proceedings is not absolute and its scope may vary depending on the specific features of the case in question (Hudáková and Others v. Slovakia, 2010, §§ 26-27), subject to the Court’s scrutiny in the last instance (Regner v. the Czech Republic [GC], 2017, §§ 146- 147). In the last-mentioned case, the Court pointed out that the proceedings had to be considered as a whole and that any restrictions on the adversarial and equality-of-arms principles could have been sufficiently counterbalanced by other procedural safeguards (§§ 151-161).
– The adversarial principle does not require that each party must transmit to its opponent documents which have not been presented to the court either (Yvon v. France, 2003, § 38).
– In several cases with very particular circumstances, the Court found that the non-disclosure of an item of evidence and the applicant’s inability to comment on it had not undermined the fairness of the proceedings, in that having that opportunity would have had no impact on the outcome of the case and the legal solution reached was not open to discussion (Stepinska v. France, 2004, § 18; Salé v. France, 2006, § 19; Asnar v. France (no. 2), 2007, § 26).
A failure to observe the adversarial principle may be remedied by the appellate body, as long as it has “full jurisdiction” within the meaning of the case-law. Similarly, a procedural shortcoming on the part of an appellate court may be corrected by the lower court to which the case has been remitted (Köksoy v. Turkey, 2020, §§ 36-39).