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(iv)
Presence at hearing
The right to be present at the hearing has been differently applied in civil, as opposed
to criminal, cases.
As Jessica Simor and Ben Emmerson QC put it :-
"The presence of the parties to civil litigation does not have the same significance as the
presence of an accused in a criminal trial. There may however be cases in which fairness
requires the presence and participation of the person directly affected by the decision."
(v)
Restricting evidence
Disputes as to the admissibility of evidence have been held by the Commission
generally not to be within the ambit of Art 6(1). However, where, looking at the
proceedings as a whole, restrictions on evidence are such as to destroy the essential
fairness of the hearing, such restrictions would be unconstitutional.
(vi)
Giving reasons
While reasons generally have to be given, there is no obligation on the court to give a
"detailed answer to every argument".
It is again a question of meeting flexibly the
requirement for essential fairness. In Hiro Balani v Spain (1995) 19 EHRR 566 at
§27, the E Ct HR described its approach as follows :-
"The extent to which this duty to give reasons applies may vary according to the nature of the
decision. It is moreover necessary to take into account, inter alia, the diversity of the
submissions that a litigant may bring before the courts and the differences existing in the
Contracting States with regard to statutory provisions, customary rules, legal opinion and the
presentation and drafting of judgments. That is why the question whether a court has failed
to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, can only be
determined in the light of the circumstances of the case."
Notes
See the opinions of the Commission in Muyldermans v Belgium (1993) 15 EHRR 204 at §64 and in
Wilson v United Kingdom Application No 00036791/97.
S&E, §6.144. See also L&P §4.6.28.
In its decision holding the application inadmissible in Charlene Webb v United Kingdom (1997) 24
EHRR CD 73, at CD74.
And no doubt also bad at common law.
Van de Hurk v the Netherlands Application No 00016034/90, 19.4.94, §61.
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