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BOR 10 implements Article 14 of the ICCPR and is substantially similar to Art 6(1) of
the European Convention on Human Rights ("ECHR") which provides as follows :-
"In the determination of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law. Judgment shall be pronounced publicly but the
press and public may be excluded from all or part of the trial in the interests of morals, public
order or national security in a democratic society, where the interests of juveniles or the
protection of the private life of the parties so require, or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity would prejudice the interests of
justice."
In Shum Kwok Sher v HKSAR
(2002)
5 HKCFAR 381 at §59, the Court of Final
Appeal confirmed that :-
"In interpreting the provisions of Chap III of the Basic Law
and the provisions of the Bill,
the Court may consider it appropriate to take account of the established principles of
international jurisprudence as well as the decisions of international and national courts and
tribunals on like or substantially similar provisions in the ICCPR, other international
instruments and national constitutions."
Accordingly, guidance as to the scope and nature of the rights provided for by BL 35
and BOR 10 may be sought in the jurisprudence of the European Court of Human
Rights in Strasbourg ("E Ct HR") and the opinions of the European Commission of
Human Rights ("the Commission") regarding ECHR Art 6(1), and from any relevant
decisions and comments of the Human Rights Committee ("HRC") concerning ICCPR
14.
While the ECHR does not explicitly lay down a right of access to the courts, it has
been held by the E Ct HR,
as one might expect, that such right is inherent in the right
to a fair and public hearing provided for by Art 6(1). The ECHR jurisprudence
therefore proceeds on the footing that the Convention guarantees a right of access to
the courts.
Notes
Golder v United Kingdom (1975) 1 EHRR 524 at §36; Z v United Kingdom (1999) 28 EHRR CD 65;
Judgment 10 May 2001 at §91.
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