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The ‘Personal Participation’ Issue

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Applications of the 'Fair Hearing' Norm in ECHR Article 6(1) to Civil Proceedings

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Abstract

In this chapter, the author discusses the issue of when a civil litigant is entitled to attend and participate in person at an oral hearing, if such a hearing is held in the first place. This is referred to as the personal participation issue. The Strasbourg Court’s general approach has been that as a starting point, a civil litigant is not entitled to participate in person at the oral hearing. In contrast to how the ‘oral hearing’ issue has been approached, the burden is on the applicant to show that personal participation had been indispensable for the sake of the fairness of the proceedings. At the same time, the case law shows that the threshold is not necessarily high in this regard. Similarly to how the Court in many cases has approached the ‘oral hearing’ issue, if it appears possible that the party’s personal participation could have been of some practical significance, then a refusal of leave to attend will easily be found to have been unjustified. For the sake of clarification, the author proposes that the Court should refine its general approach to the ‘personal participation’ issue, and bring it more into line with its approach to the related ‘oral hearing’ issue.

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Notes

  1. 1.

    See Diennet v. France para 33.

  2. 2.

    Somogyi v. Italy para 65. See also, e.g., Ilisescu and Chiforec v. Romania para 33; Strzalkowski v. Poland para 39; Makarenko v. Russia para 132; Izet Haxhia v. Albania paras 61–63. In Proshkin v. Russia para 101, the applicant had been denied to defend himself in person on account of his alleged mental illness, and the Strasbourg Court makes it clear that the trial court may only ‘exceptionally continue hearings where the accused is absent on account of illness, provided that his or her interests are sufficiently protected’.

  3. 3.

    As is noted also in Dijk and others, Theory and Practice of The European Convention on Human Rights (2006) 590, where it is observed that ‘[t]he rule that the person concerned is entitled to be present at the hearing at first instance seems less strict in civil proceedings. However, in the Helmers case, concerning the “civil” right to enjoy a good reputation, the Strasbourg Court developed with regard to the entitlement of the applicant to be present at the appeal hearing the same line of reasoning as in criminal cases’. We see that Helmers v. Sweden [PS] is here taken as an example of case law concerning the ‘personal participation’ issue, and not only the ‘oral hearing’ issue. This is, of course, because there is in practice a close link between these two issues, as the discussion which follows will show. See also Mole/Harby, The Right to a Fair Trial – a guide to the implementation of Article 6 of The European Convention on Human Rights (2006) 44; Clayton/Tomlinson (eds), Fair Trial Rights (2010) 158; Kjølbro, Den Europæiske Menneskerettighedskonvention – for praktikere (2010) 452–453; Lorenzen and others, Den Europæiske Menneskerettighedskonvention med kommentarer (Art. 1–9) (2011) 428.

  4. 4.

    Khuzhin and others v. Russia para 104.

  5. 5.

    See Sokur v. Russia para 31; Shilbergs v. Russia para 105; Mokhov v. Russia para 41; Artyomov v. Russia para 201. For similar reasoning, see Karpenko v. Russia para 21 (‘in respect of non-criminal matters there is no absolute right to be present at one’s trial, except in respect of a limited category of cases’); Vladimir Vasilyev v. Russia paras 76–77. The tenet that the right to be present in person in civil proceedings is not as such guaranteed by the ‘fair hearing’ right was established by the Commission as early as 1959 in X. v. Sweden (decision of the Commission 30 June 1959, App. No. 434/58) [PS]. The HRC has approached the issue in a similar manner, by holding that a criminal defendant has a right to participate in person at the trial hearing (see Mr. Miguel Ángel Rodríguez Orejula v. Colombia, U.N. Doc. A/57/40 at 172 (2002) para 7.3), while a civil litigant is not automatically entitled to participate in person. The HRC has instead, rather vaguely, stated that CCPR Article 14(1) ‘may’ require personal participation, see Zouhair Ben Said v. Norway, U.N. Doc CCPR/C/68/D/767/1997 (2000) para 11.3. Conte/Burchill, Defining Civil and Political Rights – the jurisprudence of the United Nations Human Rights Committee (2009) 173–174 finds it regrettable that the HRC has not clarified further in what situations personal presence is required in the context of civil proceedings.

  6. 6.

    See Sokur v. Russia paras 34–35; Shilbergs v. Russia para 111; Artyomov v. Russia para 205. Jacobs, The European Convention on Human Rights (1975) 101–102, with reference to Commission reports, also emphasizes that ‘the right to be heard as a witness in one’s own case’ is not as such protected by the ECHR, but that in certain circumstances the proceedings cannot conceivably be ‘fair’ without the personal presence of the party concerned, for example where the ‘personal character’ of this party is directly relevant to the court’s decision. Harris and others, Harris, O’Boyle & Warbrick: Law of The European Convention on Human Rights (2014) 410 alleges that ‘the recognition of the right to an adversarial trial suggests that the right of a party to civil proceedings to be present should be more generally recognized’. Kennelly and others, ‘Right to a Fair Trial’ in Lester/Pannick/Herberg (eds), Human Rights Law and Practice (2009) 302–303 simply remark that a party in general has ‘a right to be physically present’.

  7. 7.

    Illustrative examples are Kovalev v. Russia paras 33–38; Sokur v. Russia paras 33–38; Shilbergs v. Russia para 111. An illustrative example from the HRC’s case law is the decision of M.G. v. Germany, U.N. Doc. CCPR/C/93/D/1482/2006 (2008) paras 10.1–10.2. This decision actually concerned the procedure leading to the procedural decision of ordering a party to court proceedings to undergo ‘a medical examination of her physical and mental state of health’ in order to establish whether she was at all capable of participating in the proceedings. This decision is regarded by the HRC as an interference with the author’s right to privacy according to CP Article 17, and should therefore not have been made ‘without having heard or seen the author in person’. There had been a violation of CP Article 17 in conjunction with Article 14(1). The HRC goes rather far in this decision in imposing on the national court an obligation to hear a party in person before a procedural decision of a certain type is reached. The individual opinions of Mr. Ivan Shearer and Ms. Ruth Wedgwood question the majority’s approach, and emphasize both the objectives of efficiency and economy, as well as the fact that the procedural decision at issue did not amount to a final determination of the author’s capacity to participate in the proceedings, only a decision to obtain a medical report in order to shed light on this issue.

  8. 8.

    See Göc v. Turkey [GC] para 51.

  9. 9.

    Kovalev v. Russia para 37. Conversely, in W.J. v. Austria (decision of the Commission 20 May 1998, App. No. 23759/94), the Commission accepts that the national court, on the basis of a consideration like this, refused to hear the applicant in person, even if the case before the national court had concerned the applicant’s claim to be granted custody of or access to his own child. In view of subsequent judgments, this Commission decision should be regarded as highly questionable.

  10. 10.

    See Kovalev v. Russia para 37.

  11. 11.

    Illustrative examples are Zhuk v. Ukraine paras 34–45 and the HRC’s decision Lucy Dudko v. Australia, U.N. Doc. CCPR/C/90/D/1347/2005 (2007) paras 7.2–7.4 (both of these cases, however, concerned criminal proceedings). Conversely, there are examples that the Commission emphasizes that neither the prosecution nor the defence was ‘present or represented’ in proceedings before an appellate court, which meant that there had been no inequality of arms, and therefore no violation of the ‘fair hearing’ right, see X. v. The United Kingdom (decision of the Commission 30 September 1974, App. No. 5871/72) [PS] (concerning criminal proceedings); X. v. The United Kingdom (decision of the Commission 16 May 1977, App. No. 7413/76) [PS] (concerning criminal proceedings).

  12. 12.

    The Strasbourg Court has commented that a person who is incarcerated ‘in the nature of things’ is in another situation than a person at liberty as far as the opportunity to attend court hearings is concerned, see Kamasinski v. Austria para 107.

  13. 13.

    Beresnev v. Russia para 118 illustrates that the less burdensome it is to let the applicant attend the hearing in person, the harder will it be for the respondent state to justify the refusal of leave to attend.

  14. 14.

    Illustrative examples are Khuzhin and others v. Russia para 55; Proshkin v. Russia; Mokhov v. Russia para 45.

  15. 15.

    Illustrative examples are Sokur v. Russia paras 34–35; Shilbergs v. Russia para 111; Artyomov v. Russia para 205.

  16. 16.

    See Hunt v. Ukraine paras 66, 56–60. As regards the importance of whether the national court should have gotten a personal impression of the party, the Commission emphasized this perspective as early as in 1959 in X. v. Sweden (decision of the Commission 30 June 1959, App. No. 434/58) [PS].

  17. 17.

    See Shtukaturov v. Russia paras 69–76. See also D.D. v. Lithuania para 120; X and Y v. Croatia para 84. The Berková v. Slovakia judgment paras 143–152 provides an example, from the context of incapacitation proceedings, that the national court’s refusal to hear the party in person may, in certain circumstances, be justified. The applicant had put in motion proceedings to restore her to full legal capacity. The national court obtained an expert opinion and other documentary evidence, and heard the applicant’s guardian and the experts directly. The experts recommended that the applicant should not ‘be heard in person by a court (…) as she was unable to correctly understand the scope of the proceedings’. The Strasbourg Court finds that the national court had ‘gathered sufficient evidence’ and that ‘appropriate procedural guarantees were provided’. There had been no violation of ECHR Article 6(1).

  18. 18.

    See Kovalev v. Russia para 37; Shilbergs v. Russia para 111; Skorobogatykh v. Russia paras 63–67; Artyomov v. Russia para 205; Roman Karasev v. Russia para 67; Vladimir Vasilyev v. Russia paras 87–88; Gryaznov v. Russia para 49; Beresnev v. Russia para 126; Dmitriyev v. Russia [Comm] para 50; Bortkevich v. Russia para 66. See also Pashayev v. Azerbaijan para 68; Insanov v. Azerbaijan para 145. See, for similar reasoning, also Karpenko v. Russia para 22, where the national court proceedings had concerned the termination of parental rights, and the Strasbourg Court therefore finds that ‘the applicant’s testimony (…) would have constituted an indispensable part of his presentation of the case’. Representation did not, in such circumstances, suffice to secure the applicant’s ‘effective, proper and satisfactory presentation of the applicant’s case’.

  19. 19.

    See Sokur v. Russia paras 32–38.

  20. 20.

    See, for illustrative examples, Kozlov v. Russia paras 44–46; Margaretic v. Croatia paras 129–133. See also Fidler v. Austria (decision of the Court 23 February 1999, App. No. 28702/95).

  21. 21.

    As was deemed to be the case in Kozlov v. Russia paras 39–47: the applicant was, after his arrest and incarceration, sent all relevant documents pertaining to the case, and was given a genuine opportunity to appoint and instruct a lawyer. The applicant did, however, not attempt to appoint a lawyer, and did not submit any written observations himself. The respondent state was not responsible for the applicant not having made use of the opportunities available to him, and there had been no violation of ECHR Article 6(1). Another illustrative example in this regard is Kabwe v. The United Kingdom (decision of the Court 2 October 2010, App. No. 29647/08; 33269/08) The Law A)c).

  22. 22.

    See Shilbergs v. Russia para 108; Mokhov v. Russia para 47; Artyomov v. Russia para 204; Gryaznov v. Russia para 48; Mitkus v. Latvia para 26.

  23. 23.

    See Shilbergs v. Russia para 108; Artyomov v. Russia para 204; Roman Karasev v. Russia para 63; Vladimir Vasilyev v. Russia para 86 (where the respondent state had claimed that the Russian legal aid system could have provided the applicant with the aid he needed, but where the Strasbourg Court ‘is not satisfied on the basis of the available information that the Russian legal aid system could offer the applicant sufficient protection of his rights’).

  24. 24.

    See Kozlov v. Russia paras 42–47; Kabwe v. The United Kingdom (decision of the Court 2 October 2010, App. No. 29647/08; 33269/08) The Law A)c).

  25. 25.

    See Goddi v. Italy para 29, which concerned criminal proceedings, but which anyway illustrates this point – what may be required of a criminal defendant in this regard, can also, as a general rule, be required of a civil litigant who is incarcerated. See also Hermi v. Italy [GC] paras 89–103; Josef Prinz v. Austria para 44; Borisov v. Russia paras 35–39, all concerning criminal proceedings. An example that the national authorities were not justified in considering the defendant’s failure to lodge a request as a tacit waiver of his right to attend the hearing, because the provisions of the applicable statute did not sufficiently clearly alert the defendant to this possibility, is Samokhvalov v. Russia paras 55–61 (concerning criminal proceedings). Jeronovics v. Latvia paras 26–29 provides an example that an incarcerated defendant had lodged a request to be transported to the oral hearing, and when this request had not been followed up, this circumstance constituted a violation of ECHR Article 6. See, in this latter respect, also Sayd-Akhmed Zubayrayev v. Russia paras 30–33.

  26. 26.

    See Sokur v. Russia para 36; Shilbergs v. Russia para 109; Skorobogatykh v. Russia para 65; Artyomov v. Russia para 206; Vladimir Vasilyev v. Russia para 84; Karpenko v. Russia para 93; Gryaznov v. Russia para 50; Bortkevich v. Russia para 67; Beresnev v. Russia para 125. For an example that a hearing at the prison premises had taken place, so that the applicant had been given an opportunity to be present (and therefore, there had been no violation of the ‘fair hearing’ right), see Razvyazkin v. Russia paras 139–144, 149. See also Insanov v. Azerbaijan para 146.

  27. 27.

    It is illustrative that in Khuzhin and others v. Russia para 55, the Strasbourg Court emphasizes that in the national court decision which refused the applicant leave to appear, the national court had simply held ‘that the Penitentiary Code did not provide for the possibility of bringing convicted persons from a correctional colony to the local investigative unit for the purpose of taking part in a hearing in a civil case’, and thus not conducted a concrete assessment of whether personal participation was necessary in the applicant’s case. Proshkin v. Russia para 103, which concerned criminal proceedings, is also illustrative, as the Strasbourg Court emphasizes that the national court does not seem to have ‘made a proper assessment of the applicant’s ability to participate at a qualified level in the criminal proceedings against him’ (the applicant had been denied to be present in person on account of mental illness), and, furthermore, that there had not been a ‘formal decision dealing with the issue of the applicant’s attendance’. See also Mokhov v. Russia para 45.

  28. 28.

    An example that the lack of an opportunity of personal participation at the appeal hearing constituted a violation is Andrejeva v. Latvia [GC] paras 96–102. An example that the lack of such an opportunity did not constitute a violation is Artyomov v. Russia paras 209–212. See also, in the latter regard, X. v. The United Kingdom (decision of the Commission 14 December 1970, App. No. 4430/70) [PS]; Karting v. The Netherlands (decision of the Commission 13 May 1988, App. No. 12087/86) [PS] The Law para 1; Strasser v. Austria (decision of the Court 25 September 2001, App. No. 37261/97) The Law para 2. A host of judgments concerning the issue of whether the criminal defendant was entitled to participate in person at the appeal hearing, also illustrate that the reasoning is along the same lines as when the question is whether an oral appeal hearing had to be held at all, see Hermi v. Italy [GC] paras 60–67; Kamasinski v. Austria para 106; Kremzow v. Austria paras 58–59; Botten v. Norway para 39; Belziuk v. Poland para 37; Michael Edward Cooke v. Austria para 35; Pobornikoff v. Austria para 24; Kucera v. Austria paras 27–30; Vanyan v. Russia paras 59–62; Gorou v. Greece (No. 4) paras 26–28; Danila v. Romania paras 33–43; Popovici v. Moldova paras 70–75; Spinu v. Romania paras 55–65; Sibgatullin v. Russia paras 38–42; Sobolewski v. Poland (No. 2) paras 39–44; Strzalkowski v. Poland paras 43–50; Ieremeiov v. Romania (No. 1) paras 28–31; Kononov v. Russia paras 35–37; Popa and Tanasescu v. Romania paras 48–52; Stanca v. Romania paras 71–76; Vilanova Goterris and Llop Garcia v. Spain [Comm] paras 28–37; Abdulgadirov v. Azerbaijan paras 38–49.

  29. 29.

    It may be noted that the HRC’s approach to the question of when a criminal defendant has a right to be present at an appeals hearing, seems to be even more flexible than the Strasbourg Court’s approach to this issue, see Mr. Vladimir Donskov v. Russia, U.N. Doc. CCPR/C/93/D/1149/2002 (2008) para 10.2 (concerning criminal proceedings), and the Individual Opinion of Ms Ruth Wedgwood, who criticizes the majority for not putting sufficient emphasis on the ‘equality of arms’ perspective in this regard.

  30. 30.

    See Richen and Gaucher v. France paras 35–36; Fontaine and Bertin v. France paras 51–56; P.D. v. France paras 28–35.

  31. 31.

    See Yakovlev v. Russia para 20 for an illustrative statement in this regard. See also Razyazkin v. Russia paras 145–149, where the applicant chose not to appear at the hearing as a protest against his lawyer having been denied access to the prison because he refused to abide by the internal prison regulations; as the regulations at issue had not been ‘insurmountable’ (the lawyer could not bring any items into the prison), the applicant’s lawyer was himself responsible for not being let in, and the applicant had to bear the responsibility for choosing not to appear at the hearing; he had ‘explicitly and unequivocally waived his right to take part’ (para 147).

  32. 32.

    See Yakovlev v. Russia para 22; Groshev v. Russia para 30; Larin v. Russia paras 41–50. From the criminal context, see Ziliberberg v. Moldova para 39; Sharomov v. Russia para 45; Masaev v. Moldova paras 16–18; Puzyrevskiy v. Russia para 19.

  33. 33.

    See Andrejeva v. Latvia [GC] para 99. In addition, Alimena v. Italy paras 18–20 provides an example of this from the criminal context. See also Slyusar v. Ukraine paras 32–34: the applicant had been given an incorrect date for when the hearing was to take place – the examination of the case in his absence therefore constituted a violation. Conversely, see Dabich v. The Former Yugoslav Republic of Macedonia (decision of the Court 3 July 2006, App. No. 59995/00) The Law para 2, where there had been an ambiguity as to the date of the hearing (two different dates were indicated by the summons), but where, in view of the totality of the circumstances, there had been no violation anyway (the applicant had not shown up at any of the other hearings during the course of the proceedings, he had refused to receive the summons and sign the slip receipt, and had not shown up at court on any of the two dates indicated by the summons).

  34. 34.

    See Mitrevski v. The Former Yugoslav Republic of Macedonia para 37.

  35. 35.

    See Duriez-Costes v. France paras 25–28.

  36. 36.

    This issue had been raised by the applicant before the Strasbourg Court in Milovanova v. Ukraine (decision of the Court 2 October 2007, App. No. 16411/03), but as the applicant did not raise the issue before the national courts, the Strasbourg Court ‘does not find itself in the position to deal with that argument’.

  37. 37.

    See Babunidze v. Russia (decision of the Court 15 May 2007, App. No. 3040/03) The Law para 1. The HRC’s decision Zouhair Ben Said v. Norway, U.N. Doc CCPR/C/68/D/767/1997 (2000) para 11.3 provides an example of such reasoning in the context of the civil limb of CCPR Article 14(1). The HRC attaches decisive weight to the fact that the author, who had been denied entry to Norway to participate in court proceedings, had not himself or through his counsel requested that the hearing be postponed to allow him to participate in person. See also the HRC’s decision Marcel Schuckink Kool v. The Netherlands, U.N. Doc. CCPR/C/92/D/1569/2007 (2008) para 4.3 (concerning criminal proceedings), where it is emphasized that the author had not complied with the national court’s request that he submit evidence of his inability to attend.

  38. 38.

    See Komanicky v. Slovakia paras 51–55.

  39. 39.

    See Henri Rivière and others v. France paras 30–34 (concerning criminal proceedings). See also Petrina v. Croatia paras 48–59 (concerning criminal proceedings): the medical report commissioned by the national court indicated that the defendant could appear at the hearing, but that a medical back-up team then had to be available. The national court could not regard the defendant’s absence from the hearing as unjustified when it had neither taken steps to ensure the presence of such a medical team (it had summoned a single physician, who anyway did not show up), nor informed the applicant of such steps.

  40. 40.

    See, for illustrative examples, Ninn-Hansen v. Denmark (decision of the Court 18 May 1999, App. No. 28972/95) The Law e) (concerning criminal proceedings); Vogl and Vogl v. Austria (decision of the Court 23 October 2001, App. No. 50171/99) The Law para 3b); Liebreich v. Germany (decision of the Court 8 January 2008, App. No. 30443/03) The Law para 2b) (concerning criminal proceedings).

  41. 41.

    See Van Pelt v. France paras 63–64; Medenica v. Switzerland paras 53–60; Liebreich v. Germany (decision of the Court 8 January 2008, App. No. 30443/03) The Law para 2b), all concerning criminal proceedings – the point must be equally valid in the context of civil proceedings.

  42. 42.

    See Margus v. Croatia [GC] paras 90–91 (concerning criminal proceedings). See also Idalov v. Russia [GC] paras 176–182, also concerning criminal proceedings, where the national judge had not given a warning to the applicant concerning his behaviour, and it therefore constituted a violation that he was removed from the courtroom during the hearing.

  43. 43.

    See Stanford v. The United Kingdom para 26. See Timergaliyev v. Russia paras 52–60 (concerning criminal proceedings) for an example that a defendant who was hard of hearing, had brought the national appellate court’s attention to his plight in this regard – as the appellate court had failed to take any action, there had been a violation of ECHR Article 6.

  44. 44.

    Marcello Viola v. Italy paras 60–77. See also Gennadiy Medvedev v. Russia paras 37–38 (concerning criminal proceedings), where these conditions were satisfied. See also Sakhnovskiy v. Russia paras 99–107 (concerning criminal proceedings), where these conditions were not satisfied.

  45. 45.

    For an illustrative example of similar reasoning in the civil context, see Kabwe v. The United Kingdom (decision of the Court 2 October 2010, App. No. 29647/08; 33269/08) The Law A)c).

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    Ola Johan Settem

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Settem, O.J. (2016). The ‘Personal Participation’ Issue. 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_8

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