Public Hearing and exclusion of Public

EJTN Seminar Human Rights and Access to Justice in the EU -2’

Strasbourg, 9 October 2019

Katerina Lazana, Registry Lawyer

Article 6

“In the determination of his civil rights and obligations or of anycriminal charge against him, everyone is entitled to a fair andpublic hearing within a reasonable time by an independent andimpartial tribunal established by law.

Judgment shall be pronounced publicly but the press and publicmay be excluded from all or part of the trial in the interests ofmorals, public order or national security in a democratic society,where the interests of juveniles or the protection of the privatelife of the parties so require, or to the extent strictly necessary inthe opinion of the court in special circumstances wherepublicity would prejudice the interests of justice. ...”

Public Hearing and exclusion of Public

Aims:

• Protection of litigants against the administrationof justice in secret with no public scrutiny

• Means whereby confidence in the courts can bemaintained

• Publicity contributes to the achievement of aimin 6 § 1 -------- fair trial

Public Hearing and exclusion of Public

Principle: public nature of court proceedings

Aspects:

1. Holding of public hearings

2. Public delivery of judgments

Public hearing implies a right to an “oral hearing”

(refusal to hold one may be justified only in exceptional cases)

Public Hearing and exclusion of Public

1. When does a trial comply with the requirement of publicity?

a. When the public is able to obtain information about the date and the place of the hearing and

b. If the place is easily accessible to the public.

If hindrance - Compensatory measures???

Public Hearing and exclusion of Public

2. Is the lack of publicity justified for any of the reasons set out in Article 6 § 1 ?

a. Where interests of juveniles or the private life of parties so require

b. To the extent strictly necessary – special circumstances where publicity would prejudice the interests of justice

Public Hearing and exclusion of Public

• Security problems are a common feature of many criminal proceedings, but cases in which security concerns justify excluding the public are rare.

• In a criminal-law context : high expectation of publicity. It may on occasion be necessary to limit the open and public nature of the proceedings in order, for example :

- To protect the safety or privacy of witnesses

- To promote the free exchange of information and opinion in the pursuit of justice

Public Hearing and exclusion of Public

3. Is the lack of publicity at first instance remedied bypublic appeal hearing?

What is the scope of the appeal proceedings?

If limited (no review on the merits of the case, including an assessmentof proportionality between the fault and the sanction) : lack of publichearing cannot be remedied

(Criminal) “The absence of publicity could not […] be remedied byanything other than a complete re-hearing before the appellate court”

Public Hearing and exclusion of Public

Is the exclusion of the public strictly necessary in thecircumstances of each case?

Welke and Białek v. Poland, §§ 75-79

[manifestly ill-founded]

• Classified information in the file

• State’s interest in prosecuting drug-related offences

• Need to keep secret police methods of investigation

• No evidence was withheld from the defence

• Court’s finding that the fairness of the proceedings has not been infringed

• Applicants’ counsel did not object to the decision to hold the hearing in camera

Public Hearing and exclusion of Public

• Article 6 § 1 does not prohibit courts from deciding, inthe light of the special features of the case submitted tothem, to derogate from this principle ;

• Holding proceedings, whether wholly or partly, incamera, must be strictly required by the circumstances ofthe case ;

• Litigants must at least have the opportunity ofrequesting a public hearing, even if the court may refusethe request on account of the circumstances of the caseand for the specific reasons in Article 6 § 1 ;

• The mere presence of classified information in the casefile does not automatically imply a need to close a trial tothe public, without balancing openness with other publicinterest considerations.

Public Hearing and exclusion of Public

Some cases of interest :

• Martinie v. France [GC]

• Riepan v. Austria

• B. and P. v. UK

• Welke and Białek v. Poland

• Kriestovsky v. Russia

• Belashev v. Russia

• Chaushev and others v. Russia

• Khrabrova v. Russia

Thank you very much for your attention!!