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\u2019s request for a second expert opinion, in order to ascertain whether the refusal had been reasonable.<\/li>\n<\/ul>\nAppointment 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 (Letin\u010di\u0107 v. Croatia, 2016, \u00a7 50; Devinar v. Slovenia, 2018, \u00a7 46).<\/p>\n
Article 6 \u00a7 1 of the Convention does not expressly require an expert heard by a \u201ctribunal\u201d to fulfil the same independence and impartiality requirements as the tribunal itself (Sara Lind Eggertsd\u00f3ttir v. Iceland, 2007, \u00a7 47; Letin\u010di\u0107 v. Croatia, 2016, \u00a7 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 Eggertsd\u00f3ttir v. Iceland, 2007, \u00a7 53; Letin\u010di\u0107 v. Croatia, 2016, \u00a7 51); likewise, the expert may occupy a preponderant position in the proceedings and exert considerable influence on the court\u2019s assessment (Yvon v. France, 2003, \u00a7 37; Letin\u010di\u0107 v. Croatia, 2016, \u00a7 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, \u00a7 47).<\/p>\n
A medical expert report pertaining to a technical field that is not within the judges\u2019 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,
\n\u00a7 36; Storck v. Germany, 2005, \u00a7 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, \u00a7 60).<\/p>\n
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, \u00a7\u00a7 49-50; ). However, the following should be noted.<\/p>\n
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 (Letin\u010di\u0107 v. Croatia, 2016, \u00a7 61; Devinar v. Slovenia, 2018, \u00a7 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, \u00a7\u00a7 48 and 51; Hamzagi\u0107 v. Croatia, 2021, \u00a7\u00a7 49-52, concerning a disability pension granted in one country but not in another, where the applicant\u2019s doubts were not held to be justified).<\/p>\n
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, \u00a7\u00a7 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 (\u00a7 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, \u00a7\u00a7 48-50). The expert\u2019s 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\u2019s neutrality (Tabak v. Croatia, 2022, \u00a7 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<\/p>\n
Concerning the parties\u2019 rights vis-\u00e0-vis the expert: compare Feldbrugge v. the Netherlands, 1986,
\n\u00a7 44 (violation), with Olsson v. Sweden (no. 1), 1988, \u00a7\u00a7 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, \u00a7\u00a7 86-93). For the appointment of a medical expert not specialising in the applicant\u2019s condition, Hamzagi\u0107 v. Croatia, 2021, \u00a7 54.<\/p>\n
<\/span>Non-disclosure of Evidence<\/span><\/h3>\nIn 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 \u2013 compare with Corneschi v. Romania, 2022; Miryana Petrova v. Bulgaria, 2016, \u00a7\u00a7 39-40), or the need to keep certain police investigation\/surveillance methods secret (Adomaitis v. Lithuania, 2022, \u00a7 68).<\/p>\n
In the Court\u2019s 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 \u00a7 1 (Regner v. the Czech Republic [GC], 2017, \u00a7 148 ; Adomaitis v. Lithuania, 2022, \u00a7\u00a7 68-74).<\/p>\n
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\u2019s interests (Regner v. the Czech Republic [GC], 2017, \u00a7\u00a7 147-49).<\/p>\n
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 (\u00a7 151). The Court held that the proceedings as a whole had offset the restrictions curtailing the applicant\u2019s enjoyment of the rights afforded to him in accordance with the principles of adversarial proceedings and equality of arms (\u00a7 161). Conversely, in Corneschi
\nv. Romania, 2022, after noting that the applicant had not unequivocally waived his right to be informed (\u00a7\u00a7 94-96), the Court examined whether the restriction of access to documents had been \u201cnecessary\u201d (\u00a7 100), before determining whether there had been any counterbalancing measures and found a violation of Article 6 of the Convention.<\/p>\n
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 (\u00a7 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, \u201cat the very least\u201d, be provided with \u201csufficient information\u201d about the existence of an authorisation and about the decision authorising the surveillance (\u00a7 68).<\/p>\n
<\/span>Appearance in Person<\/span><\/h3>\nEquality of arms requires that a party in civil or criminal matters should be able to participate in the proceedings.\u00a0In 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.<\/p>\n
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].<\/p>\n
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.<\/p>\n
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.<\/p>\n
<\/span>State Immunity<\/span><\/h3>\nIn 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.<\/p>\n
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.<\/p>\n
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.<\/p>\n\n
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Principle \u201cEquality of arms\u201d 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[345],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23031"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=23031"}],"version-history":[{"count":32,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23031\/revisions"}],"predecessor-version":[{"id":23539,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23031\/revisions\/23539"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=23031"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=23031"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=23031"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}