<\/span><\/h3>\nAs regards proceedings concerning prisoners, incarceration cannot in itself justify not giving them a hearing before a civil court (Igranov and Others v. Russia, 2018, \u00a7\u00a7 34-35). Practical reasons may be taken into consideration but the principles of the right to a fair hearing must be observed and the prisoner must have the opportunity to ask to be present at the hearing (Altay v. Turkey (no. 2), 2019, \u00a7 77). If the prisoner has not made such a request when this possibility was not provided for in domestic law, that does not mean that the prisoner has waived his or her right to appear in court (\u00a7 78).<\/p>\n
In this context, the first question to be determined is whether the nature of the dispute dictates that the prisoner should appear in person (Zayidov v. Azerbaijan (no. 2), 2022, \u00a7\u00a7 88-89). If so, the domestic authorities are required to take practical measures of a procedural nature to ensure the prisoner\u2019s effective participation in the hearing in his or her civil case (Yevdokimov and Others v. Russia, 2016, \u00a7\u00a7 33-47 \u2013 referring to Marcello Viola v. Italy, 2006, as regards participation in the hearing via video link and other types of practical measures; see the case-law references cited \u2013 and \u00a7 52).<\/p>\n
In the case cited, the domestic courts had refused to allow prisoners to attend hearings in civil proceedings to which they were parties, on the grounds that no provision was made in domestic law for transferring the prisoners to the court. Finding that the applicants had been deprived of the opportunity to present their cases effectively, the Court held that the domestic authorities had failed to meet their obligation to ensure respect for the principle of a fair trial (\u00a7 52 \u2013 see also Altay v. Turkey (no. 2), 2019, \u00a7\u00a7 78- 81).<\/p>\n
Furthermore, a practical problem arising because the applicant is serving a prison sentence in a different country does not preclude consideration of alternative procedural options, such as the use of modern communication technologies, so that the applicant\u2019s right to be heard can be respected (P\u00f6nk\u00e4 v. Estonia, 2016, \u00a7 39).<\/p>\n
In Ramos Nunes de Carvalho e S\u00e1 v. Portugal [GC], 2018, the Grand Chamber summarised some examples of situations where a hearing was, or was not, necessary (\u00a7\u00a7 190-191).<\/p>\n
The case of P\u00f6nk\u00e4 v. Estonia, 2016, concerned the use of a simplified procedure (reserved for small claims) and the court\u2019s refusal to hold a hearing, without providing reasons for its application of the written procedure (\u00a7\u00a7 37-40). The case of Mirovni In\u0161titut v. Slovenia, 2018, concerned a challenge against a decision to reject a bid in a tendering procedure. The domestic court had given no explanation for refusing to hold a hearing, thus preventing the Court from determining whether the domestic court had simply neglected to deal with the applicant institute\u2019s request for a hearing or whether it had decided to dismiss it and, if so, for what reasons (\u00a7 44). In both cases the Court found that the refusal to hold a hearing had breached Article 6 \u00a7 1 (P\u00f6nk\u00e4 v. Estonia, 2016, \u00a7 40; Mirovni In\u0161titut v. Slovenia, 2018, \u00a7 45). As to the extent of the reasons to be provided, in Cimper\u0161ek v. Slovenia the Court emphasised the importance of justifying the refusal to hold a hearing on the basis of the factual circumstances of the case (\u00a7 45).<\/p>\n
In Straume v. Latvia, 2022, concerning the freedom of expression of a representative of an air traffic controllers\u2019 trade union, the Court did not accept, in particular, the reasons given by the national courts to justify excluding the public and emphasised that the subject matter of the dispute had called for public scrutiny (\u00a7\u00a7 127-129).<\/p>\n
In a case concerning hearings before the Court of Arbitration for Sport (CAS), the Court found that the matters relating to the question whether the sanction imposed on the applicant for doping had been justified, had required a hearing open to public scrutiny. It observed that the facts had been contested and that the penalties which the applicant had been liable to incur carried a significant degree of stigma and were likely to adversely affect her professional honour. It therefore concluded that there had been a violation of Article 6 \u00a7 1 on account of the lack of a public hearing before the CAS (Mutu and Pechstein v. Switzerland, 2018, \u00a7\u00a7 182-183).<\/p>\n
Whenever an oral hearing is to be held, the parties have the right to attend (for the holding of a hearing earlier than scheduled in the context of an appeal on points of law by the public prosecutor, depriving the applicant of her right to appear in court, see Andrejeva v. Latvia [GC], 2009, \u00a7\u00a7 99-101), to make oral submissions, to choose another way of participating in the proceedings (for example by appointing a representative) or to ask for an adjournment. For the effective exercise of those rights, the parties must be informed of the date and place of the hearing sufficiently in advance to be able to make arrangements.<\/p>\n
The Court has stated that the national courts are required to check the validity of the notification prior to embarking on the merits of the case. The analysis set out in the domestic decisions must go beyond a mere reference to the dispatch of a judicial summons and must make the most of the available evidence in order to ascertain whether an absent party was in fact informed of the hearing sufficiently in advance. A domestic court\u2019s failure to ascertain whether an absent party received the summons in due time and, if not, whether the hearing should be adjourned, is in itself incompatible with genuine respect for the principle of a fair hearing and may lead the Court to find a violation of Article 6 \u00a7 1 (see Gankin and Others v. Russia, 2016, \u00a7\u00a7 39 and 42, and the summary of the principles established in the case-law concerning notification of hearings, the provision of information to the parties and the question of waiving the right to a hearing, \u00a7\u00a7 34-38).<\/p>\n
In some situations, appearing in person may be problematic, and the Court has found that a litigant\u2019s participation in civil proceedings via video link (Skype), with his lawyer present in the courtroom, was compatible with the right to a fair hearing in the circumstances of the particular case (Jallow v. Norway, 2021, concerning proceedings for parental responsibility involving a foreign applicant who was not allowed to enter the country).<\/p>\n
<\/span>Presence of Press and Public:<\/span><\/h3>\nThe public character of proceedings before judicial bodies protects litigants against the administration of justice in secret with no public scrutiny and thus constitutes one of the means whereby confidence in the courts can be maintained, contributing to the achievement of the aim of a fair trial (Diennet v. France, 1995, \u00a7 33; Martinie v. France [GC], 2006, \u00a7 39; Gautrin and Others v. France, 1998, \u00a7 42; Hurter v. Switzerland, 2005, \u00a7 26; Lorenzetti v. Italy, 2012, \u00a7 30). Article 6 \u00a7 1 does not, however, prohibit courts from deciding, in the light of the special features of the case, to derogate from this principle (Martinie v. France [GC], 2006, \u00a7\u00a7 40-44). Holding proceedings, whether wholly or partly, in camera must be strictly required by the circumstances of the case (Lorenzetti v. Italy, 2012, \u00a7 30). The wording of Article 6 \u00a7 1 provides for several exceptions.<\/p>\n
According to the wording of Article 6 \u00a7 1, \u201c[t]he press and public may be excluded from all or part of the trial\u201d:<\/p>\n
\n- in the interests of morals, public order or national security in a democratic society\u201d (B. and P. v. the United Kingdom, 2001, \u00a7 39; Zagorodnikov v. Russia, 2007, \u00a7 26);<\/li>\n
- where the interests of juveniles or the protection of the private life of the parties so require\u201d: the interests of juveniles or the protection of the private life of the parties are in issue, for example, in proceedings concerning the residence of minors following their parents\u2019 separation, or disputes between members of the same family (ibid., \u00a7 38); however,in cases involving the transfer of a child to a public institution the reasons for excluding a case from public scrutiny must be subject to careful examination (Moser v. Austria, 2006,\u00a7 97). As for disciplinary proceedings against a doctor, while the need to protect professional confidentiality and the private lives of patients may justify holding proceedings in private, such an occurrence must be strictly required by the circumstances (Diennet v. France, 1995,\u00a7 34; and for an example of proceedings against a lawyer: Hurter v. Switzerland, 2005, \u00a7\u00a7 30- 32);<\/li>\n
- or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice\u201d: it is possible to limit the open and public nature of proceedings in order to protect the safety and privacy of witnesses, or to promote the free exchange of information and opinion in the pursuit of justice (B. and P. v. the United Kingdom, 2001, \u00a7 38; Osinger v. Austria, 2005, \u00a7 45).<\/li>\n<\/ul>\n
The Court has added that the case-law concerning the holding of a hearing as such, relating mainly to the right to address the court as enshrined in Article 6 \u00a7 1 (see above) is applicable by analogy to hearings that are open to the public. Thus, where a hearing takes place in accordance with domestic law, it must in principle be public. The obligation to hold a public hearing is not absolute since the circumstances that may justify dispensing with one will essentially depend on the nature of the issues to be determined by the domestic courts (De Tommaso v. Italy [GC], 2017, \u00a7\u00a7 163-67). \u201cExceptional circumstances \u2013 including the highly technical nature of the matters to be determined – may justify the lack of a public hearing, provided that the specific subject matter does not require public scrutiny\u201d (Lorenzetti v. Italy, 2012, \u00a7 32).<\/p>\n
The mere presence of classified information in the case file does not automatically imply a need to close a trial to the public. Accordingly, before excluding the public from a particular set of proceedings, the courts must consider specifically whether such exclusion is necessary for the protection of a public interest, and must confine the measure to what is strictly necessary in order to attain the aim pursued (Nikolova and Vandova v. Bulgaria, 2013, \u00a7\u00a7 74-77, concerning a hearing held in camera because of documents classified as State secrets; see also, regarding the principles, Vasil Vasilev v. Bulgaria, 2021, \u00a7\u00a7 105-106). A similar approach applies to proceedings for damages in connection with the interception of a lawyer\u2019s telephone conversations (ibid., \u00a7\u00a7 107-109).<\/p>\n
Lastly, the lack of a hearing may or may not be sufficiently remedied at a later stage in the proceedings (Malhous v. the Czech Republic [GC], 2001, \u00a7 62; Le Compte, Van Leuven and De Meyere v. Belgium, 1981, \u00a7\u00a7 60-61; Diennet v. France, 1995, \u00a7 34).<\/p>\n
<\/span>Waiver<\/span><\/h3>\nA failure to engage in proceedings or absconding may constitute a waiver.\u00a0Waiver of the right to a public hearing\/to appear at the hearing: neither the letter nor the spirit of Article 6 \u00a7 1 prevents an individual from waiving his right to a public hearing of his own free will, whether expressly or tacitly, but such a waiver must be made in an unequivocal manner and must not run counter to any important public interest (Le Compte, Van Leuven and De Meyere v. Belgium, 1981, \u00a7 59; H\u00e5kansson and Sturesson v. Sweden, 1990, \u00a7 66; Exel v. the Czech Republic, 2005, \u00a7 46). The summons to appear must also have been received in good time (Yakovlev v. Russia, 2005, \u00a7\u00a7 20-22; Dilipak and Karakaya v. Turkey, 2014, \u00a7\u00a7 79-87).<\/p>\n
In Sejdovic v Italy, it has held that it was possible to waive Article 6 rights to some extent. However, the waiver must be unequivocal and must have safeguards to protect against misuse. It must not undermine important public interests.<\/p>\n
However, this must be reasonably apparent. In Jones v UK, the court indicated that where a person did not attend at the start of the trial and could not be expected to understand that failure to attend could lead to a trial in his absence proceeding, the proceedings did not respect the guarantee.<\/p>\n
Conditions governing a waiver of these rights: the person concerned must consent (Le Compte, Van Leuven and De Meyere v. Belgium, 1981, \u00a7 59), of his own free will (Albert and Le Compte v. Belgium, \u00a7 35). The right may be waived expressly or tacitly (Le Compte, Van Leuven and De Meyere v. Belgium, 1981, \u00a7 59). But it must be done in an unequivocal manner (Albert and Le Compte v. Belgium, 1983, \u00a7 35; H\u00e5kansson and Sturesson v. Sweden, 1990, \u00a7 67) \u2013 as the Court emphasised more recently in Vasil Vasilev v. Bulgaria, 2021, \u00a7 111 \u2013 and it must not run counter to any important public interest (H\u00e5kansson and Sturesson v. Sweden, \u00a7 66).<\/p>\n
Failure to request a public hearing does not necessarily mean that the person concerned has waived the right to have one held; regard must be had to the relevant domestic law (G\u00f6\u00e7 v. Turkey [GC], 2002, \u00a7 48 in fine; Exel v. the Czech Republic, 2005, \u00a7 47; see also Vasil Vasilev v. Bulgaria, 2021,\u00a7 111). Whether or not the applicant requested a public hearing is irrelevant if the applicable domestic law expressly excludes that possibility (Eisenstecken v. Austria, 2000, \u00a7 33).<\/p>\n\n
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Public Judgement Article 6 \u00a7 1 of the Convention \u201c1. In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing by [a] tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial […]<\/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\/23049"}],"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=23049"}],"version-history":[{"count":21,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23049\/revisions"}],"predecessor-version":[{"id":23537,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23049\/revisions\/23537"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=23049"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=23049"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=23049"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}