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15УДК 341.9
Котленко Наталия Сергеевна Московский государственный университет им. М.В.Ломоносова
Юридический факультет Россия, Москва KotlenkoNata@yandex.ru Kotlenko Natalia Lomonosov Moscow State University
Law faculty Russia, Moscow
Каштанова Полина Алексеевна НИУ «Высшая школа экономики» Факультет права Россия, Москва kashtanovapa@gmail.com Kashtanova Polina
National Research University Higher School of Economics
Faculty of Law Russia, Moscow
ПРАВО НА СПРАВЕДЛИВОЕ СУДЕБНОЕ РАЗБИРАТЕЛЬСТВО В ПРАКТИКЕ ЕСПЧ И ЕГО ВЛИЯНИЕ НА МЕЖДУНАРОДНЫЙ
ГРАЖДАНСКИЙ ПРОЦЕСС Аннотация: в 20 веке права человека имели гораздо меньшее значение для международного гражданского процесса. Однако, в настоящее время ситуация значительно изменилась. Так, сейчас и Европейский суд по правам человека
(ЕСПЧ), и национальные суды все чаще и чаще сталкиваются с проблемой соблюдения прав человека в рамках гражданского судопроизводства. В связи с этим, необходимо понимать, какое влияние оказывает практика ЕСПЧ на международный гражданский процесс. В настоящей работе проведен анализ толкования принципа на справедливое судебное разбирательство в практике ЕСПЧ и его влияния на международный гражданский процесс. Ключевые слова: право на справедливое судебное разбирательство, Европейский суд по правам человека, международный гражданский процесс, права человека, международное частное право.
THE RIGHT TO FAIR TRIAL IN ECHR PRACTICE AND ITS IMPACT ON
INTERNATIONAL CIVIL PROCEDURE Annotation: the impact of human rights on international civil procedure in 20th century was less significant. However, this situation gradually changed. Currently, we could see that the number of cases where European Court of Human Rights (ECtHR) and national courts were dealing with those issues experienced a noticeable increase. Therefore, it is crucial to understand the impact of ECtHR practice on international civil procedure. This work deals with this issue in the regards to the right to fair trial and analyses how it affects international civil procedure.
Key words: right to fair trial, European court of human rights, international civil procedure, human rights, private international law.
The right to fair trial is one of the fundamental human rights, recognized by main regional and international human rights treaties. This right as well as the other rights of civil procedure is universal in nature. It is universal both in its content and in application, regardless of place or time of legal proceedings [5, p.391].
The International Covenant on Civil and Political Rights (ICCPR) guarantees "the right to a fair and public hearing by a competent, independent and impartial
tribunal established by law". The European Convention (ECHR) contains a quite similar provision, that specify, however, that this hearing should be held within a reasonable time. In addition, although the ECHR explicitly states that those rights should be applied "in the determination of civil rights", the ICCPR only mentions criminal charges and so-called "rights and obligations in a suit at law". In this regard, it is necessary to underline that, according to Human Rights Committee, this concept also includes "procedures...in the areas of contract, property and torts in the area of private law" [2].
It should be also mentioned that article 14(1) of the ICCPR includes the provision about the right to equality before the courts and tribunals, while it is not mentioned in the ECHR. However, this right is still present in ECtHR case law [3], as we will see further. This right ensures equal access and equality of arms, and guarantees that the parties would be treated without any discrimination [2].
Overall, this is a complex right with a number of elements, which are valuable as a whole and separately. According to the prevailing view, the right to fair trial in civil law cases entails four elements: the right of access to a court; the right to equality of arms; the right to a public hearing; and the right to be heard within a reasonable period of time [3].
As for the right of access to a trial, it is not explicitly guaranteed by article 6 of the ECHR, as was discussed before. However, in the case Golder v. the United Kingdom ECtHR confirmed that "the right to institute proceedings before courts in civil matters" is indeed a part of the right to fair trial [10].
The right of access to trial should not be just guaranteed. Rather, it should be made practical and effective [7, p.112]. Nevertheless, it should be said that the proclamation of effectiveness of this right is only limited to procedural bars for exercising this right and that substantive issues are not to be taken into account, when deciding whether the right to fair trial was violated [7, p.135].
In some cases the restrictions to this right can be financial in nature [7, p.114]. For instance, in some cases the ECtHR ruled that in determining the exact amount of the security for costs that needs to be deposited, a court should consider whether appellants have necessary financial means, otherwise it deprive them of their right of access to a court [13].
This right is also relevant to the issue of jurisdiction in international civil procedure. It is clear that those provisions do not mean that an individual has an unfettered choice of a court. So, if a national court holds, that it has no jurisdiction over the case in a situation when there is more suitable court available, it would not amount to the breach of article 6 of the ECHR [9, p.7].
This right can be invoked, however, in a situation, when there is no court competent to deal with a case or when this court is not available due to the exertional circumstances, such as civil war. The refusal to accept jurisdiction in those circumstances could lead to the denial of the right to access to the court [7, p. 118].
It is the reason why some countries developed an additional ground for jurisdiction called forum necessitatis that allows courts to accept jurisdiction, when it is impossible or unreasonable to litigate it abroad. This rule is common in most continental European jurisdictions and in Canada [8], and was even included in Civil Procedure Codes of Spain and the Netherlands [4]. Some scholars also argue that this rule may be able to help victims of corporate human rights abuses that could not bring a claim in their national courts, because of the fear of corrupt legal systems [6].
The right to fair trial, as was stated before, also includes the right to equality of arms. This right ensures the same procedural rights to all the parties of the proceedings [2]. The main goal of this right is to maintain fair balance between parties, that brings it closer to the adversarial principle [1, p.74].
Equality of arms is applicable, for instance, in the sphere of service of documents. In a case Avotins v. Latvia a cypriot court ruled in an absence of defendant that he is obliged to pay his debts. This decision was recognized and enforced by latvian
courts. A defendant then argued that he had not been served with the documents instituting the proceedings in Cyprus in sufficient time, as the claimant did not use in the proceedings his actual address. The ECtHR stated that the right to fair trial is applicable to the service of process. However, in this case it did not find violation of article 6 of the Convention, because under Cypriot law the defendant had the right to appeal if he was not duly summoned, so the court hearing the application would be required to set aside the judgment given in default [18]. Nevertheless, it is clear that the right to fair trial could actually be invoked against the recognition and enforcement of foreign judgments.
Article 6 of the ECHR does not imply that states must provide free legal aid for every civil law dispute, in contrast to criminal proceedings [15]. However, it is essential in complex cases, in which the effective defence could not be guaranteed otherwise [1, p.34]. For instance, in another case ECHR found the violation of the right to equality of arms in a complex case, when the denial of legal aid to one of the parties deprived it of ability to effectively protect itself in comparison to a wealthier opponent [16]. In the relation to international civil procedure it is arguable whether this guarantee should be applied only to nationals or to foreign parties as well. In the relation to the ECHR the difference in treatment will potentially invoke article 14, prohibiting discrimination [7, p.145]. Therefore, there should be a single approach to both of those groups.
The next part of the right to fair trial is the right to a public hearing. It does not have a significant effect on international civil procedure, so we will consider it briefly. This right guarantees that both civil and criminal proceedings should be conducted orally and publicly. To ensure that courts have to provide public with the information regarding the time and venue of a trial [11].
These rules protect litigants by making the administration of justice transparent [12]. However, there are several exceptions to this right, prescribed by article 6 of the ECHR [1, p.86].
Finally, the last element of the fair trial is the right to be heard within a reasonable time. The ECHR obliges Contracting states to organize proceedings in such a way that will comply with this requirement. This period usually starts when the action is instituted before the competent court and comprises all stages of the legal proceedings, including appeal proceedings and execution of judgment [1, p.89].
In assessing the reasonableness of the length of trial the following criteria should be considered: the complexity of the dispute, the conduct of the applicant and what was at stake in the case [14].
The complexity of the dispute may be caused, for example, by the involvement of several parties in the case and difficulties in collection and assessment of considerable amount of evidence. Applicant's conduct is to be taken into account, however, usually cannot justify the lack of actions from the authorities [1, p.93]. In addition, there are several categories of cases that requires expeditious decisions by their nature such as cases concerning civil status and capacity, child custody and employment disputes [1, p.96].
The violation of the right to fair trial could lead to the state's decision against the enforcement of a foreign judgment. For instance, there was a case, in which a court in Netherlands decided whether it could recognize the Russian judgment declaring the bankruptcy of the Yukos company. The Russian tax authority presented a large amount of evidence, but the defendant was not given enough time to review them. The Russian court ruled in favor of the applicant. Yukos company appealed in Strasbourg, however, national authorities did not allow them to wait for the results and the company was declared bankrupt. Dutch authorities, therefore, refused to enforce this decision on the basis of violation of the right to fair trial [17].
As we could see from this analysis the right to fair trial is a complex right that includes the right of access to a court; the right to 'equality of arms'; the right to a public hearing; and the right to be heard within a reasonable time. All those elements set up standards of civil procedure that should be followed by the national states.
The European Court's approach in the regard to the international civil procedure appears to leave a wide margin of appreciation to State parties to the Convention. The number of cases in which the European Court considered the right to fair trial in this sphere is also limited. Nevertheless, ECtHR's case law still creates a framework for national legal regimes. As a result, states parties to the ECHR need to adapt their legal systems to the standards set by the European Court's case law and European Convention to fulfill their obligations under it. Therefore, ECtHR practice appears to have a great authority in the regard to international civil procedure.
1. Guide on Article 6 of the European Convention on Human Rights// URL: https: //www.echr.coe.int/documents/guide_art_6_eng.pdf.
2. UNHRC, General Comment 32 (2007) UN Doc CCPR/C/GC/32.
3. Ana Koprivica. Right to a Fair Trial in Civil Law Cases// URL: https: //oxcon.ouplaw. com/view/10.1093/law-mpeccol/law-mpeccol-
e120# :~:text=The%20broader%20concept%20of%20the,in%20order%20to%20provi de%20proper.
4. Calabrese M.. What is forum necessitatis and why should I bother to know// URL: https://www.familylawitaly.com/what-is-forum-necessitatis-and-why-should-i-bother-to-know/.
5. Carel C. Voskuil A., Sumampouw M., (1992). Law and Reality: Essays on National and International Procedural Law in Honour of Cornelis Carrel Albert Voskuil.
6. Chilenye Nwapi, 'Jurisdiction by Necessity and the Regulation of the Transnational Corporate Actor' (2014) 30(78) Utrecht Journal of International and European Law.
7. Kiestra, L. R. (2013). The impact of the ECHR on private international law: An analysis of Strasbourg and selected national case law.
Список литературы
8. Lucas Roorda. Vedanta v. Lungowe Symposium: Vedanta v. Lungowe and Access to Justice// URL: http://opiniojuris.org/2019/04/25/vedanta-v-lungowe-symposium-vedanta-v-lungowe-and-access-to-justice%EF%BB%BF/.
9. Fawcett J. The Impact of Article 6(1) of the Echr on Private International Law// The International and Comparative Law Quarterly Vol. 56, No. 1 (Jan., 2007).
10. Golder v. the United Kingdom no. 4451/70 (ECtHR, 21 February 1975).
11.Van Meurs v. The Netherlands Communication No. 215/1986 U.N. Doc. CCPR/C/39/D/215/1986(11 July 1990).
12. Diennet v. France no. 25/1994/4/472/553 (ECtHR, 31 August 1995).
13. Ait-Mouhoub v. France no 22924/93 (ECtHR, 28 October 1998).
14. Comingersoll S.A. v. Portugal no. 35382/97 (ECtHR, 6 April 2000).
15. Essaadi v. France no. 36515/97 (ECtHR, 26 February 2002).
16. Steel and Morris v. the United Kingdom no. 68416/01(ECtHR, 6 April 2004).
17. OAO Neftyanaya Kompaniya Yukos v. Russia no. 14902/04 (ECtHR, 20 September 2011).
18. Avotins v. Latvia no. 17502/07 (ECtHR, 25 February 2014).
