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(d)
The right to a fair and public hearing as it operates at first instance
The primary focus of the right to a fair and public hearing is on the trial process at first
instance during which the parties' substantive rights and obligations are decided. As
mentioned above, the rights are not intended to bite at prior, interlocutory, stages.
Moreover, they apply somewhat differently in the context of appellate proceedings.
On the plane of first instance hearings, the E Ct HR has held that under Art 6(1) the
right to a "fair and public hearing" generally :-
(a)
entails an entitlement to an oral hearing held in public unless there are
exceptional circumstances that justify dispensing with such a hearing;
(b)
involves a prima facie right for a person charged with a criminal offence to be
present at the hearing;
and,
(c)
requires the court to give reasons for its decision
and to pronounce its
judgment in public.
However, applying the general principle upholding the validity of proportionate
restrictions which pursue a legitimate aim and do not impair the very essence of the
access and hearing rights, the E Ct HR has held numerous restrictions to be
acceptable.
Notes
Fredin v Sweden (No 2) No 20/1993/415/494 at §21; Fischer v Austria (1995) 20 EHRR 349 and §44
and Jacobsson v Sweden (No 2), Judgment 19.2.98 at §46.
Ekbatani v Sweden (1988) 13 EHRR 504 at §25.
Hiro Balani v Spain (1995) 19 EHRR 566 at §27.
As expressly required by Art 6(1).
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