<\/span><\/h3>\nIt is primarily for the national authorities, in particular the courts, to interpret, and assess compliance with, domestic law (Ramos Nunes de Carvalho e S\u00e1 v. Portugal [GC], 2018, \u00a7 186, and Gu\u00f0mundur Andri \u00c1str\u00e1\u00f0sson v. Iceland [GC], 2020, \u00a7 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, \u00a7 191), in its capacity as the ultimate authority on the application and interpretation of the Convention (Gu\u00f0mundur Andri \u00c1str\u00e1\u00f0sson v. Iceland [GC], 2020, \u00a7 286), and by virtue of the principle of subsidiarity and \u201cshared responsibility\u201d between the States Parties and the Court (\u00a7 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 (Grz\u0119da v. Poland [GC], 2022, \u00a7 341).<\/p>\n
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 (Garc\u00eda Ruiz v. Spain [GC], 1999, \u00a7 28; Perez v. France [GC], 2004, \u00a7 82; De Tommaso v. Italy [GC], 2017, \u00a7 170). That being so, the Court cannot call into question the findings of the domestic authorities on alleged errors of law unless they are \u201carbitrary or manifestly unreasonable\u201d (Scordino v. Italy (no. 1) [GC], 2006, \u00a7 191, and Na\u00eft-Liman v. Switzerland [GC], 2018, \u00a7 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\u2019s case-law). The Court\u2019s sole task in connection with Article 6 is to examine applications alleging that the domestic courts have failed to observe \u201cspecific procedural safeguards\u201d laid down in that Article or that \u201cthe conduct of the proceedings as a whole did not guarantee the applicant a fair hearing\u201d (De Tommaso v. Italy [GC], 2017, \u00a7 171).<\/p>\n
That being so, it is extremely rare for the Court to question under Article 6 \u00a7 1 the national courts\u2019 assessment on the grounds that their findings might be regarded as arbitrary or manifestly unreasonable.<\/p>\n
This was the case, for example, in Dulaurans v. France, 2000, \u00a7 38 (see also Tel v. Turkey, 2017, \u00a7 76), where the Court found a violation of Article 6 \u00a7 1 because of a \u201cmanifest error of judgment\u201d – that is, an error of fact or law by the national court that is so \u201cevident\u201d as to be characterised as \u201cmanifest\u201d in the sense that no reasonable court could ever have made it, as underlined in Bochan v. Ukraine (no. 2) [GC], 2015, \u00a7 61; Khamidov v. Russia, 2007, \u00a7 170, where the proceedings complained of had been \u201cgrossly arbitrary\u201d; An\u0111elkovi\u0107 v. Serbia, 2013, \u00a7 24, and Lazarevi\u0107 v. Bosnia and Herzegovina, 2020, \u00a7 32, where there had been a \u201cdenial of justice\u201d; Bochan v. Ukraine (no. 2) [GC], 2015, where the domestic court\u2019s reasoning was regarded as being \u201cgrossly arbitrary\u201d or as entailing a \u201cdenial of justice\u201d: see \u00a7\u00a7 63-65 and the cases cited above, and Ball\u0131kta\u015f Bing\u00f6ll\u00fc v. Turkey, 2021, \u00a7\u00a7 77-78 (and contrast, for example, Ball\u0131kta\u015f Bing\u00f6ll\u00fc v. Turkey, 2021, \u00a7 82, and Soci\u00e9t\u00e9 anonyme d\u2019habitations \u00e0 loyers mod\u00e9r\u00e9s Terre et Famille v. France (dec.), 2004). In Baljak and Others v. Croatia, 2021, the Court found that the domestic courts\u2019 conclusions had been \u201cmanifestly unreasonable\u201d, 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 (\u00a7 41).<\/p>\n
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\u2019s counter-arguments (\u00a7 79).<\/p>\n
Lastly, in this context, a lack of judicial coordination and diligence may have had an undeniable impact on the applicant\u2019s fate (Tel v. Turkey, 2017, \u00a7 67).
\nIn conclusion, a \u201cdenial of justice\u201d will occur if no reasons are provided or the reasons given are based on a \u201cmanifest\u201d factual or legal error committed by the domestic court (Ball\u0131kta\u015f Bing\u00f6ll\u00fc v. Turkey, 2021, \u00a7 77, referring to Moreira Ferreira v. Portugal (no. 2) [GC], 2017, \u00a7 85, in the criminal sphere).<\/p>\n
Returning to the principle, the Court may not, as a general rule, question the findings and conclusions of the domestic courts as regards:
\n\uf0a7 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, \u00a7 61); the Court cannot challenge the findings of the domestic courts, save where they are flagrantly and manifestly arbitrary (Garc\u00eda Ruiz v. Spain [GC], 1999, \u00a7\u00a7 28-29; Radomilja and Others v. Croatia [GC], 2018, \u00a7 150).
\n\uf0a7 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, \u00a7 82), not for the Strasbourg Court, whose role is to verify whether the effects of such interpretation are compatible with the Convention (Nejdet \u015eahin and Perihan \u015eahin v. Turkey [GC], 2011, \u00a7 49). In exceptional cases the Court may draw the appropriate conclusions where a Contracting State\u2019s courts have interpreted domestic law in an arbitrary or manifestly unreasonable manner (Bara\u0107 and Others v. Montenegro, 2011, \u00a7\u00a7 32-34, with further references; An\u0111elkovi\u0107 v. Serbia, 2013, \u00a7\u00a7 24-27 (denial of justice); Laskowska v. Poland, 2007, \u00a7 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, \u00a7 148 and the reference cited; Fabris v. France [GC], 2013, \u00a7 60; or Anheuser-Busch Inc. v. Portugal [GC], 2007, \u00a7\u00a7 85-86; see also Kushoglu v. Bulgaria, 2007, \u00a7 50; I\u015fyar v. Bulgaria, 2008, \u00a7 48).
\n\uf0a7 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: Grz\u0119da v. Poland [GC], 2022, \u00a7 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 \u00a7 1. Consequently, in the absence of any arbitrariness which would in itself raise an issue under Article 6 \u00a7 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 (Avoti\u0146\u0161 v. Latvia [GC], 2016, \u00a7 100), general international law or international agreements (Waite and Kennedy v. Germany [GC], 1999, \u00a7 54; Markovic and Others v. Italy [GC], 2006, \u00a7\u00a7 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, \u00a7 153).
\n\uf0a7 The admissibility and assessment of evidence:33 the guarantees under Article 6 \u00a7 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 (Garc\u00eda Ruiz v. Spain [GC], 1999, \u00a7 28; Farange
\nS.A. v. France (dec.), 2004). The reasons they provide in this regard are nevertheless important for the purposes of Article 6 \u00a7 1 and call for the Court\u2019s scrutiny (see, for example, Carmel Saliba v. Malta, 2016, \u00a7\u00a7 69-73).<\/p>\n
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 (\u00a7 145).<\/p>\n
So Article 6 \u00a7 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.<\/p>\n
A fourth-instance complaint under Article 6 \u00a7 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 (Garc\u00eda Ruiz v. Spain [GC], 1999, \u00a7 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).<\/p>\n
<\/span>Consistency of domestic case-law<\/span><\/h3>\nArticle 6 \u00a7 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 \u015eahin and Perihan \u015eahin v. Turkey [GC], 2011, \u00a7 58; Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, \u00a7 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, \u00a7 37; Svilenga\u0107anin and Others v. Serbia, 2021, \u00a7\u00a7 81-82).
\n106. In principle it is not the Court\u2019s 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, \u00a7 41). Furthermore, there can be no \u201cdivergence\u201d where the factual situations in issue are objectively different (U\u00e7ar v. Turkey (dec.), 2009).<\/p>\n
There may, however, be cases where divergences in case-law lead to a finding of a violation of Article 6 \u00a7 1. Here the Court\u2019s 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.<\/p>\n
In the first case (divergences in the case-law of the highest national court), the Court uses three criteria in determining:<\/p>\n
\n- whether the divergences in the case-law are \u201cprofound and long-standing\u201d;<\/li>\n
- whether the domestic law provides for mechanisms capable of resolving such inconsistencies; and<\/li>\n
- whether those mechanisms were applied and to what effect (Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, \u00a7\u00a7 116-35; Beian v. Romania (no. 1), 2007, \u00a7\u00a7 37 and 39).<\/li>\n<\/ul>\n
In the last-mentioned case, the highest national court had adopted judgments that were \u201cdiametrically opposed\u201d and the mechanism provided for in domestic law for ensuring consistent practice had not been used promptly, thus undermining the principle of legal certainty.<\/p>\n
A practice of profound and long-standing differences which has developed within the country\u2019s 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 (Gu\u00f0mundur Andri \u00c1str\u00e1\u00f0sson v. Iceland [GC], 2020, \u00a7 238, as regards the principle; Beian v. Romania (no. 1), 2007, \u00a7 39).<\/p>\n
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 (\u00a7\u00a7 39-40).<\/p>\n
In Hayati \u00c7elebi 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\u2019 claim for damages being declared inadmissible, whereas other people in a similar situation had secured a review of the merits of their claims (\u00a7 66).<\/p>\n
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, \u00a7 42; compare Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, \u00a7\u00a7 130-132).<\/p>\n
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 \u00a7 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 \u00a7 1 (Nejdet \u015eahin and Perihan \u015eahin v. Turkey [GC], 2011, \u00a7\u00a7 81-83 and 86).<\/p>\n
<\/span>Adversarial proceedings<\/span><\/h3>\nThe 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, \u00a7 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, \u00a7 118).<\/p>\n
The requirements resulting from the right to adversarial proceedings are in principle the same in both civil and criminal cases (Werner v. Austria, 1997, \u00a7 66).
\n114. The desire to save time and expedite the proceedings does not justify disregarding such a fundamental principle as the right to adversarial proceedings (Nider\u00f6st-Huber v. Switzerland, 1997, \u00a7 30).<\/p>\n
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\u2019s decision (Kress v. France [GC], 2001, \u00a7 74; Ruiz-Mateos
\nv. Spain, 1993, \u00a7 63; McMichael v. the United Kingdom, 1995, \u00a7 80; Vermeulen v. Belgium, 1996, \u00a7 33; Lobo Machado v. Portugal, 1996, \u00a7 31). This requirement may also apply before a Constitutional Court (Milatov\u00e1 and Others v. the Czech Republic, 2005, \u00a7\u00a7 63-66; Gaspari v. Slovenia, 2009, \u00a7 53).<\/p>\n
\n- The actual effect on the court\u2019s decision is of little consequence (Nider\u00f6st-Huber v. Switzerland, 1997, \u00a7 27; Ziegler v. Switzerland, 2002, \u00a7 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 (K\u00f6ksoy v. Turkey, 2020, \u00a7\u00a7 34-35 and case-law references cited).<\/li>\n
- 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 (Kr\u010dm\u00e1\u0159 and Others v. the Czech Republic, 2000, \u00a7 42; Immeubles Groupe Kosser v. France, 2002, \u00a7 26), if necessary by obtaining an adjournment (Yvon v. France, 2003, \u00a7 39).<\/li>\n
- 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, \u00a7 37).<\/li>\n
- 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 (\u010cepek v. the Czech Republic, 2013, \u00a7 45, and compare Clinique des Acacias and Others v. France, 2005, \u00a7 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).<\/li>\n
- 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\u2019 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, \u00a7 22; Nider\u00f6st-Huber v. Switzerland, 1997, \u00a7 29; Pellegrini
\nv. Italy, 2001, \u00a7 45).<\/li>\n<\/ul>\n<\/span>Examples<\/span><\/h3>\nExamples of infringement of the right to adversarial proceedings as a result of non-disclosure of the following documents or evidence:<\/p>\n
\n- 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, \u00a7 80);<\/li>\n
- evidence adduced by the public prosecutor, irrespective of whether he was or was not regarded as a \u201cparty\u201d, since he was in a position, above all by virtue of the authority conferred on him by his functions, to influence the court\u2019s decision in a manner that might be unfavourable to the person concerned (Ferreira Alves v. Portugal (no. 3), 2007, \u00a7\u00a7 36-39);<\/li>\n
- a note from the lower court to the appellate court aimed at influencing the latter court\u2019s decision, even though the note did not set out any new facts or arguments (ibid., \u00a7 41);<\/li>\n
- documents obtained directly by the judges, containing reasoned opinions on the merits of the case (K.S. v. Finland, 2001, \u00a7\u00a7 23-24).<\/li>\n<\/ul>\n
<\/span>Limits<\/span><\/h3>\nThe right to adversarial proceedings is not absolute and its scope may vary depending on the specific features of the case in question (Hud\u00e1kov\u00e1 and Others v. Slovakia, 2010, \u00a7\u00a7 26-27), subject to the Court\u2019s scrutiny in the last instance (Regner v. the Czech Republic [GC], 2017, \u00a7\u00a7 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 (\u00a7\u00a7 151-161).<\/p>\n
– 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, \u00a7 38).
\n– In several cases with very particular circumstances, the Court found that the non-disclosure of an item of evidence and the applicant\u2019s 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, \u00a7 18; Sal\u00e9 v. France, 2006, \u00a7 19; Asnar v. France (no. 2), 2007, \u00a7 26).<\/p>\n
A failure to observe the adversarial principle may be remedied by the appellate body, as long as it has \u201cfull jurisdiction\u201d 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 (K\u00f6ksoy v. Turkey, 2020, \u00a7\u00a7 36-39).<\/p>\n\n
\n <\/div>\n\n","protected":false},"excerpt":{"rendered":"
General principles 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, \u00a7 231; Airey v. Ireland, 1979, \u00a7 24). This guarantee \u201cis one of the fundamental principles of any democratic society, within the meaning of the […]<\/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\/23169"}],"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=23169"}],"version-history":[{"count":16,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23169\/revisions"}],"predecessor-version":[{"id":23529,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23169\/revisions\/23529"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=23169"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=23169"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=23169"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}