Abstract
In this work, the author analyzes certain fundamental aspects of the right to a ‘fair hearing’ in civil proceedings according to the European Convention on Human Rights (ECHR) Article 6(1). The focus is on the implications of the ‘fair hearing’ right for the conduct of the court proceedings, with special emphasis on the balance which must be struck between procedural safeguards on the one hand, and the efficiency and economy of proceedings on the other hand. The introductory chapter outlines in what ways the author will approach these fundamental subjects.
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European Convention on Human Rights (1950) 213 UNTS 221.
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See Bårdsen, ‘Reflections on “Fair Trial” in Civil Proceedings According to Article 6 § 1 of the European Convention on Human Rights’ (2007) 107, which refers to ECHR Article 6(1) as ‘the superior European legal norm on civil procedure’. According to Jacobs, ‘The Right to a Fair Trial in European Law’ (1999) 155, one can identify a re-emergence of a common European legal culture as far as procedure is concerned, evidenced not only by ECHR Article 6, but also by European Community law. Jokela, ‘New European Methods of Legal Protection’ in Ervo/Grüns/Jokela (eds), Europeanization of Procedural Law and the New Challenges to Fair Trial (2009) 5 notes that europeanization of national procedural legislation manifests itself, inter alia, through the human rights regimes. Høstmælingen, Internasjonale menneskerettigheter (2012) 196 notes that ECHR Article 6(1), the way this provision has been interpreted by the Strasbourg Court, plays the role of rudimentary procedural rules for all European legal systems. According to Watt, ‘Evidence of an Emergent European Legal Culture: Public Policy Requirements of Procedural Fairness Under the Brussels and Lugano Conventions’ (2001) 549–551, procedural fairness according to ECHR Article 6(1) must be read into the public policy clause of the Brussels Convention (Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968) 1262 UNTS 153), which implies that if civil proceedings in one EU member state have not been conducted in accordance with the fundamental ‘fair hearing’ norm, this can constitute an impediment to having another state enforce the judgment. As regards the global perspective, Weissbrodt, The Right to a Fair Trial under the Universal Declaration of Human Rights and the ICCPR (2001) 153 remarks that while different nations have developed different procedural systems, international human rights law has established principles which apply to all national procedural systems. Of course, each contracting state’s compliance with the ‘fair hearing’ right is in many situations secured by other means than the direct application, by national courts, of ECHR Article 6(1). The different aspects of the ‘fair hearing’ right is typically complied with by the application of national procedural legislation. As Steiner/Alston, International Human Rights in Context – Law, Politics, Morals (2004) 797 note: ‘The remedy given (…) may be pursuant to provisions of domestic law that stand relatively independently of the Convention’.
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Craig, ‘The Human Rights Act, Article 6 and Procedural Rights’ (2003) 753 emphasizes that two fundamental aspects of procedural protection, including the protection established by ECHR Article 6, are ‘the criteria for the applicability of procedural norms, and the content of procedural protection if it is deemed to be applicable’.
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According to the HUDOC database (http://hudoc.echr.coe.int), from 1961 to 30 June 2015, the Strasbourg Court delivered 11 237 judgments in which Article 6 of the ECHR was at issue in some way. In addition comes admissibility decisions by the Court and reports and decisions by the former Commission.
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For example, in respect of judgments delivered before 1 November 1999, I have checked out all judgments concerning Article 6 of the ECHR. In respect of judgments delivered from 1 November 1999, I have checked out all judgments concerning Article 6 of the ECHR which, in the HUDOC database (http://hudoc.echr.coe.int), have been classified as ‘case reports’, ‘importance level 1’ or ‘importance level 2’. In addition, in respect of judgments classified as ‘importance level 3’, I have conducted a variety of keyword-based searches.
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I have mainly conducted various keyword-based searches in the HUDOC database (http://hudoc.echr.coe.int) in this regard.
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Settem, O.J. (2016). Introduction. In: Applications of the 'Fair Hearing' Norm in ECHR Article 6(1) to Civil Proceedings. Springer, Cham. https://doi.org/10.1007/978-3-319-24883-7_1
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DOI: https://doi.org/10.1007/978-3-319-24883-7_1
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