Fair Trial
1. Definition and purpose
The right to a fair trial (Art 47(2) EU Charter of Fundamental Rights (ChFR); Art 6(1) European Convention on Human Rights (ECHR)) belongs to the fundamental judicial rights and constitutes an essential pillar of any government built on the rule of law. Due to its general character, it cannot be defined in the abstract, in particular as it overlaps with neighbouring judicial rights such as the right to an effective remedy (Art 47(1) ChFR; Art 13 ECHR) or the right to legal aid (Art 47(3) ChFR). In this entry, the term ‘fair trial’ shall be used as an overarching term, encompassing all judicial guarantees for civil proceedings. This shall include not only those guarantees which take effect during ongoing proceedings, but also those guarantees which define what may be understood as an effective remedy and thus take effect before proceedings have been started (‘access to justice’). On the level of EU law, this second element, the right to an effective remedy, increasingly overlaps with the principle of effectiveness of enforcement of EU law (now enshrined in Art 19(1)3 TEU, formerly based on Art 10 EC) and seems to converge into a general right to an effective remedy (see ECJ Case C-432/05 – Unibet [2007] ECR I-2271 paras 37 ff; ECJ Case C-268/06 – Impact [2008] ECR I-2483 paras 40 ff; but see also ECJ Joined Cases C-317/08 to C-320/08 – Alassini paras 47 ff, 61 ff), based on the twin pillars of human rights (Art 6(1) ECHR; now Art 47(1) ChFR) and the doctrine of effectiveness of EU law (Art 19(1)3 TEU/10 EC). Fairness standards in judicial proceedings serve the purpose of legitimizing the outcome of the proceedings. In addition, the right to a fair hearing and a reasonable opportunity for all parties to the proceedings to present their case reduces the risk of incorrect decisions as the court becomes familiar with different perspectives on the legal and factual aspects of the dispute.
2. Origin
Even if fundamental standards of procedural fairness such as the right to be heard were already known to the Bible (Sirach, ch 11, 7 ff), the laws of antiquity and early German laws such as the Sachsenspiegel, an overarching right of due process and fair trial seems to be explicitly recognized for the first time in the English Magna Charta Libertatum of 1215 (1297 c. 9), in particular its clauses 39 and 40 (in the version of 1297 c. 29): ‘No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor [condemn him,] but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right’. A later version of the Magna Charta of 1354 (28 Edw. 3, c. 3) defines these guarantees in a slightly different way, apparently using the words ‘due process’ for the first time (‘No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law’) which later found their way into the fifth and fourteenth amendments of the US Constitution. From the Anglo-American legal tradition the right to a fair trial found its way into Art 10 of the Universal Declaration of Human Rights which served as a model for Art 6 ECHR. Today, the right to a fair hearing during legal proceedings has been recognized as a general principle of EU law (ECJ Case C-185/95 P – Baustahlgewebe [1998] ECR I-8417 paras 20 ff; ECJ Case C-305/05 – Ordre des barreaux francophones [2007] I-5305 para 29) and reaffirmed in Art 47(2) ChFR. The neighbouring right to effective judicial protection and access to justice (Art 47(1) ChFR) was developed by the ECtHR in the 1970s on the basis of Art 6(1) ECHR (ECtHR No 4451/70 – Golder, Serie A No 18 para 36, cf Art 13 ECHR) and recognized by the ECJ as a general principle of Union law in ECJ Case 222/84 – Johnston [1986] I-1651 paras 18 ff. The general right to a fair hearing can also be found in international principles or Conventions on civil procedure (ALI/UNIDROIT Principles of Transnational Civil Procedure 1, 3, 4, 5, 20 and 23; Arts 41(2), 42 TRIPS).
3. The development of the law
In contrast to more specific procedural guarantees such as the right to be heard, a general and overarching right to a fair trial has been recognized rather late as a general principle of EU law. Similarly, in the context of Art 6 ECHR questions of civil procedure—apart from the guarantee of a hearing in a reasonable time—were for a long time overshadowed by questions of criminal procedure. This changed in the 1990s, in particular with the expansion of EU private law (which rendered EU judicial rights applicable to civil proceedings) and with an increased sensibility for human rights aspects of civil procedure. Every year, the number of decisions from Luxembourg and Strasbourg relevant to civil procedure has been growing, with a remarkably close reception of the ECtHR jurisprudence by the ECJ, even though the ChFR was not formally binding prior to the Treaty of Lisbon. As an example, the ECJ has been ‘inspired’ by the rights of the ECHR in recognizing a Union right to a fair hearing (ECJ Case C-185/95 P – Baustahlgewebe [1998] I-8417 para 21), has attributed ‘particular significance’ to the ECHR in defining procedural standards (ECJ Case C-7/98 – Krombach [2000] ECR I-1935 para 25) and closely observes even details of the jurisprudence of the ECtHR before defining the standards of a fair trial at the level of EU law (as an example ECJ Case C-279/09 – DEB paras 45 ff). After the entry into force of the Lisbon Treaty, Art 52(3) ChFR explicitly endorses this practice, stating that ‘in so far as this Charter contains rights which correspond to those guaranteed by the [ECHR], their meaning and scope are to be the same as those laid down’ by the ECHR (ECJ Case C-279/09 – DEB paras 32, 35).
The strive for concordance on the part of the ECJ is echoed by a leap of faith from the ECtHR which, in general, considers the human rights guarantees of EU law as being equal to the standards of the ECHR (ECtHR No 45036/98 – Bosphorus, 2005-VI para 165). Today, Art 6 ECHR and the judicial rights enshrined in Art 47 of the ChFR provide for a comprehensive guarantee of effective judicial protection and access to the court as well as the fairness of the hearing before the court. Minor lacunae in this protection exist only where neither Art 6 ECHR (for lack of a ‘determination’ of ‘civil rights or obligations’) nor Art 47 ChFR are applicable (for lack of application, or ‘implementation’ of EU law, see ECJ Case 5/88 – Wachauf [1989] 2609 paras 19, 22; ECJ Case 260/89 – ERT [1991] I-2925 para 42, Art 51(1) ChFR; on the scope of Art 51(1) ChFR Opinion AG Bot, Case C-108/10 – Scattolon paras 116 ff). These lacunae may be avoided by applying Art 6 ECHR to all civil proceedings, without excluding special proceedings.
In the future, the development of a European concept of fair trial is likely to be strongly influenced by the jurisprudence of the ECtHR on Art 6 ECHR but may also emancipate itself from the Strasbourg case law to a certain extent, driven by special proceedings which fall under Art 47 ChFR (but not Art 6 ECHR) and driven by specific questions for which no previous authority from the ECtHR exists. The development of ever more precise and specific standards of procedure may be supported by legislative measures on the European level which establish minimum standards of procedure, possibly as a compensation for the abolition of exequatur within the European Union (on these plans see Stockholm Programme para 3.1.2; COM(2010) 171 final p 22 ff).
4. Contours of European law
Article 6(1)1 ECHR and Art 47(2)1 ChFR guarantee that everyone must be ‘entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’ (ECJ Joined cases C-341/06 P and C-342/06 P – La Poste [2008] ECR I-4777 para 45). This, as the ECtHR has held in Golder, does not only imply certain standards for ongoing proceedings, but includes also a right to fair access to the court (ECtHR No 4451/70 – Golder, Serie A No 18 paras 35 ff). A corresponding right to effective judicial protection has been recognized by the ECJ as a general principle of Union law (ECJ Case 222/84 – Johnston [1986] ECR 1651 paras 18 ff; ECJ Joined Cases C-402/05 P and C-415/05 P – Kadi [2008] ECR I-6351 para 335) and has now been spelled out in Art 47(1) ChFR, as far as rights and freedoms guaranteed by the law of the Union are violated. Article 47(2)2 and Art 47(3) ChFR flank these guarantees with a right to legal advice, representation and defence (for the corresponding guarantees under the ECHR see ECtHR No 30882/96 – Pellegrini, 2001-VIII, 371 para 46) and a right to legal aid, while Art 6(1)2 ECHR deals with the right to a public hearing and the exclusion of the public (to this point ECJ Joined Cases 209/78 to 215/78 and 218/78 – van Landewyk [1980] ECR 3125 para 18). The further guarantees of Arts 48 to 50 ChFR and Art 6(2) and (3) ECHR apply directly only to criminal proceedings. They may have certain ramifications for civil proceedings via the general right to a fair hearing, but in general a distinction needs to be made between procedural standards in criminal and civil proceedings (for the nemo tenetur principle ECJ Case C-60/92 – Postbank [1993] ECR I-5683 paras 16 ff; for translation requirements ECJ Case C-14/07 – Weiss [2008] ECR I-3367 para 57). The most important emanations of the concept of fair trial are, inter alia, the rights of the defence, the principle of equality of arms, the right of access to the courts, the right of access to a lawyer (ECJ Case C-305/05 – Ordre des barreaux francophones [2007] ECR I-5305 para 31), the adversarial nature of proceedings (ECJ Case C-450/06 – Varec [2008] ECR I-581 para 46) and the right to a decision within a reasonable time (ECJ Case C-385/07 P – Der Grüne Punkt [2009] ECR I-6155 para 178).
a) Access to the courts
i) Effective access to an independent and impartial court
The right to effective judicial protection implies that civil rights conferred on individuals can be effectively relied upon and enforced by access to an independent and impartial court (ECJ Case C-185/97 – Coote [1998] ECR I-5199 paras 20 ff; for the definition of court in the context of Art 267 TFEU/234 EC see ECJ Case C-96/04 – Standesamt Niebüll [2006] ECR I-3561 para 12). The requirement of impartiality has two aspects: ‘(i) the members of the tribunal themselves must be subjectively impartial, that is, none of its members must show bias or personal prejudice, there being a presumption of personal impartiality in the absence of evidence to the contrary; and (ii) the tribunal must be objectively impartial, that is to say, it must offer guarantees sufficient to exclude any legitimate doubt in this respect’ (ECJ Joined Cases C-341/06 P and C-342/06 P – La Poste [2008] ECR I-4777 para 54). Unless otherwise provided, the right of access to the courts is limited to a single instance (ECtHR No 2689/65 – Delcourt, Serie A No 11 para 25). In substance, the party seeking access to the court must be able to defend his or her rights effectively and under the ‘best possible conditions and have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts’ (ECJ Case 222/86 – Heylens [1987] ECR 4097 para 15). The legal protection must be comprehensive, ie extend to all measures which the applicant seeks to make subject to judicial review (ECJ Case C-185/97 – Coote [1998] ECR I-5199 paras 24–8; ECtHR No 20641/92 – Terra Woningen, 1996-VI No 25 paras 52–5). Access to the courts may be made subject to prior mandatory arbitration (ECJ Case C-63/01 – Evans [2003] ECR I-14447 paras 47–54) or prior mandatory settlement procedures (ECJ Joined Cases C-317/08 to C-320/08 – Alassini paras 62 ff), but it may not be denied because of a lack of financial resources (legal aid) or made unduly burdensome as a result of procedural or evidentiary obstacles (ECJ Case 222/84 – Johnston [1986] ECR 1651 para 20). The effectiveness of judicial protection requires that court decisions are to be implemented and enforced (ECtHR No 35091/02 – Mykhaylenky, 2004-XII para 51).
ii) Limitations
The right of access to the courts is not absolute but may be subject to limitations. These limitations must pursue a legitimate aim, keep a reasonable relationship of proportionality between the means employed and the aim sought to be achieved and must not restrict or reduce the access left to the individual in such a way that the very substance of the right is impaired (ECtHR No 8225/78 – Ashingdane, Serie A No 93 para 57; ECJ Joined Cases C-317 to C-320/08 – Alassini para 63; for a similar form of national procedural autonomy principle of effectiveness). Acceptable limitations may include a regard to the special character of the proceedings in question (eg a form of accelerated payment procedures which does not result in a final judgment on the claim, ECtHR No 28028/95 – Edificaciones March Gallego, 1998-I No 64 para 36, or interim measures, for which procedural safeguards may apply only to the extent compatible with the nature and purpose of the interim proceedings at issue, ECtHR No 17056/06 – Micallef v Malta para 86), formal requirements (ECtHR No 21920/93 – Levages Prestations, 1996-V No 19 para 48), time limits (ECtHR No 22083/93 – Stubbings, 1996-IV No 18 paras 51–6), a duty to pay court fees (unless excessive, ECtHR No 28249/95 – Kreuz, 2001-VI paras 60, 66) and the requirement of security for costs in a reasonable relation to the amount of expected costs of the proceedings (ECtHR No 18139/91 – Tolstoy Miloslawsky, Serie A No 316-B paras 61 ff, 67).
b) Right to be heard and adversarial nature of the proceedings
The right to be heard, sometimes referred to as ‘rights of the defence’ (ECJ Case C-283/05 – ASML [2006] ECR I-12041 para 27) or discussed in the context of the adversarial nature of the proceedings (ECJ Case C-450/06 – Varec [2008] ECR I-581 paras 46 ff), occupies ‘an eminent position in the organization and conduct of a fair legal process’ (ECJ Case C-341/04 – Eurofood [2006] ECR I-3813 para 66). Three stages of the right to be heard may be distinguished. First, the procedure must guarantee that the parties are made aware of the proceedings and of any matter or document which might be used in these proceedings (ECJ Case C-63/01 – Evans [2003] ECR I-14447 para 56). Secondly, all parties to the procedure must be afforded a ‘real opportunity to comment effectively’ on the evidence and observations submitted to the court (ECtHR No 12952/87 – Ruiz-Mateos, Serie A No 262 para 63; ECJ Case C-276/01 – Steffensen [2003] ECR I-3735 para 77). This is only possible if they are aware of the presentations of the other parties and of all evidence which has been adduced, which requires that the parties are notified of all procedural documents relating to the proceedings (ECtHR No 18990/91 – Nideröst-Huber, 1997-I No 29 paras 24, 28–31; see also ECJ Joined Cases C-402/05 P and C-415/05 P – Kadi [2008] ECR I-6351 para 348). Finally, the court, after listening to the submissions of the parties and assessing the evidence, has to decide whether or not to grant the relief sought in the application and give reasons for its decision. This does not mean that the court has to incorporate in full in its decision all the submissions put forward by each party; it may limit itself to those submissions which are relevant for its decision (ECtHR No 16034/90 – van de Hurk, Serie A No 288 paras 59–61; ECJ Case C-221/97 P – Schröder [1998] ECR I-8255 para 24).
The right to be heard is not an absolute right, but may be subject to certain restrictions, such as in the case of urgency for a ruling to be given. However, any restriction on the right to be heard ‘must in fact correspond to the objectives of public interest pursued by the measure in question and must not constitute, with regard to the aim pursued, a manifest or disproportionate breach of the rights thus guaranteed’ (ECJ Case C-394/07 – Gambazzi [2009] ECR I-2563 para 29). In the case of a restriction justified by the urgency of the decision, the restriction should be ‘surrounded by procedural guarantees ensuring that the persons concerned by such proceedings actually have the opportunity to challenge the measures adopted in urgency’ (ECJ Case C-341/04 – Eurofood [2006] ECR I-3813 para 66). Other restrictions of the right to be heard may be justified to preserve the fundamental rights of a third party or to safeguard an important public interest, such as the confidentiality of certain information. An appropriate balance between the protection of confidential information and business secrets on the one hand and the right to be heard on the other hand seems to be struck if the court has at its disposal all information required in order to decide in full knowledge of the facts, including confidential information and business secrets, while at the same time the party concerned is afforded an opportunity to plead before the court that the information is confidential and thus should not be disclosed to the other side (ECJ Case C-450/06 – Varec [2008] ECR I-581 paras 47, 53 ff).
c) Equality of arms
A further manifestation of a fair trial is the principle of equality of arms. While being recognized in the jurisprudence of the ECtHR for a number of years now (ECtHR No 14448/88 – Dombo Beheer, Serie A No 274 para 33), this principle is less developed in EU law where it is sometimes mentioned in connection with the right to be heard or the adversarial nature of the proceedings (ECJ Case C-341/04 – Eurofood [2006] ECR I-3813 para 66). The equality of arms is observed ‘as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary’ (ECtHR No 68416/01 – Steel und Morris, 2005-II para 62).
d) Law of evidence
A convergence of ECHR and EU procedural standards may also be observed in the law of evidence. Thus, the ECJ has—explicitly referring to the case law of the ECtHR—held that Art 6(1) ECHR ‘does not lay down rules on evidence as such’ and, therefore, ‘it is for the national courts to assess the evidence they have obtained and the relevance of any evidence that a party wishes to adduce’ (ECJ Case C-276/01 – Steffensen [2003] ECR I-3735 para 75). Nonetheless, the general principle of ‘fairness of a hearing—which requires essentially that the parties be given an adequate opportunity to participate in the proceedings before the court—relates to the proceedings considered as a whole, including the way in which evidence is taken’ (ECJ Case C-276/01 – Steffensen [2003] ECR I-3735 para 76). In particular, the right to adversarial proceedings requires that each party to a trial ‘must in principle have the opportunity to have knowledge of and comment on all evidence adduced or observations filed with a view to influencing the court’s decision’ (ECtHR No 30882/96 – Pellegrini, 2001-VIII para 44). This right may be infringed if one party may present its employee as a witness while the other is excluded from calling a person as witness who has represented it because this person is identified with the applicant company itself (exclusion of parties testifying as witnesses, ECtHR No 14448/88 – Dombo Beheer, Serie A No 274 paras 34 ff).
In cases of unlawfully obtained evidence, it is for the national court to decide whether the admission of evidence creates a risk of an infringe ment of the adversarial principle and, thus, of the right to a fair hearing. In this context, the national court will have to consider ‘whether the evidence at issue … is likely to have a preponderant influence on its assessment of the facts’ and whether the other party still has a real opportunity to comment effectively on that evidence. If the national court decides that the admission as evidence is likely to give rise to an infringement of the adversarial principle, it must exclude that evidence (ECJ Case C-276/01 – Steffensen [2003] ECR I-3735 paras 78 ff; cf ECJ Case C-411/04 P – Salzgitter [2007] ECR I-959 para 44).
e) Decision within a reasonable time
Finally, the right to a fair trial guaranteed by Art 6(1)1 ECHR and Art 47(2) ChFR includes a right to a decision delivered within a reasonable time. Whether the delay is reasonable is appraised in light of the specific circumstances of each case, such as the complexity of the case and the conduct of the parties, as well as the importance of the interests at stake for the parties (ECJ Case C-185/95 P – Baustahlgewebe [1998] ECR I-8417 para 29; ECtHR No 50615/99 – Boca, 2002-IX para 24). The assessment of the reasonableness of a period does not require a systematic examination in the light of each of these factors, ‘where the duration of the proceedings appears justified in the light of one of them’ (ECJ Case C-385/07 P – Der Grüne Punkt [2009] ECR I-6155 para 182).
f) Consequence of breach
A violation of procedural guarantees may be remedied by the trial court or the court of next instance (ECtHR No 16034/90 – van de Hurk, Serie A No 288 para 57). If a procedural guarantee is infringed, the consequences of the decision resulting from the irregular proceedings depend on the individual guarantee which was breached. According to the case law of the ECJ, in order for an ‘infringement of the right to be heard to result in annulment, it is necessary to establish that, had it not been for such an irregularity, the outcome of the procedure might have been different’ (ECJ Case 301/87 – France v Commission [1990] ECR I-307 paras 30 ff). Similarly, failure to deliver judgment within a reasonable time will lead to the setting aside of the judgment under appeal only where there are indications that the excessive length of the proceedings affected their outcome (ECJ Case C-385/07 P – Der Grüne Punkt [2009] ECR I-6155 paras 193, 196).
Such an ‘outcome-determinative’ approach to procedural irregularities does not seem convincing: it tends to underestimate the value of procedural guarantees and may induce the authorities intended to be bound by procedural guarantees to be lax in their observation of such standards, knowing that their decision will only be subject to annulment if the party whose rights have been breached can prove that the procedural irregularity has influenced the outcome of the proceedings. If procedural guarantees are to be taken seriously, at least the ‘burden of proof’ in the outcome-determinative test should be shifted, obliging the party which is relying on a procedurally irregular decision to prove that the violation of the procedural guarantee has not influenced the outcome of the proceedings in order to avoid annulment of that decision. Further sanctions for a violation of procedural guarantees is the non-recognition of foreign judgments (Art 34 nos 1, 2 Brussels I Reg 44/2001) or a right to damages.
Literature
Walther J Habscheid, ‘Zur Philosophie des Zivilprozessrechts, insbesondere zum Prinzip der Fairness’ in Perspektiven der Philosophie, Neues Jahrbuch, vol 14 (1988) 293, reprinted in Walther J Habscheid, Kleinere Schriften zu einem rechtsstaatlichen Zivil- und Verfahrensrecht (2008) 49; Wolfgang Peukert, ‘Verfahrensgarantien und Zivilprozess (Art 6 EMRK)’ (1999) 63 RabelsZ 600; David S Weissbrodt, The Right to a Fair Trial Under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (2001); Franz Matscher, ‘Der Begriff des fairen Verfahrens nach Art 6 EMRK’ in Festschrift Kostas E Beys, vol II (2003) 989; Joachim Renzikowski (ed), Die EMRK im Privat- Straf- und Öffentlichen Recht, Grundlagen einer europäischen Rechtskultur (2004); Katrin Haase, Die Anforderungen an ein faires Gerichtsverfahren auf europäischer Ebene (2006); Joseph Jacob, Civil Justice in the Age of Human Rights (2007); Richard Clayton and Hugh Tomlinson (eds), The Law of Human Rights (2nd edn, 2008) ch 11; Christian Heinze, ‘Europäisches Primärrecht und Zivilprozess’ [2008] Europarecht 654; Déirdre Dwyer, ‘The Interpretation of the English Civil Procedure Rules in the Context of Article 6 of the European Convention on Human Rights’ in Henk Snijders and Stefan Vogenauer (eds), Content and Meaning of National Law in the Context of Transnational Law (2009) 39; Laura Ervo, Minna Grans and Annti Jokela, Europeanization of Procedural Law and the New Challenges to Fair Trial (2009).
