Week 2 - Litigation

Micallef/Malta (ECtHR) - Case about Impartiality

What is impartiality? (Tests)

It means no prejudice or bias which comes in two tests:

1. Subjective Impartiality - always presumed unless proven otherwise

2. Objective Impartiality - legitimate doubt that can be objectively justified

Does art 6 ECHR apply for preliminary proceedings?

Micallef/Malta

YES - whenever an interim measure can be effective to determine the civil right or obligation at stake Article 6 ECHR will be applicable

Principle 3

Principle of Procedural Equality of the Parties

= Equality of Arms

• Do the parties de facto and de jure have equal treatment and reasonable opportunity before the Court?

Cases about Principle 3 - Procedural Equality

• Steel and Morris/UK (inequality of arms)

• Airey/Ireland (prevent effective access to court)

• DEB/Germany(prevent effective access to court)

Steel and Morris/United Kingdom (McLibel Case) - Case about (In-)Equality of Arms

• Article 6 EHCR implied a right to access of justice which must be effective

Critieria

1. what is the importance of what is at stake for the applicants?

2. how complex is the relevant law or relevant procedural law regarding these applicants?

3. are the parties capable of representing themselves?

Conclusion of Steel and Morris/United Kingdom (McLibel Case)

Denial of legal aid (in this case) constitutes inequality of arms.

Airey/Ireland - effective access to court

• When it comes to legal aid & the right to a fair trial, Art 6 ECHR, does not provide a right to legal aid in every case

• Criteria:

  • Importance of what is at stake

  • Complexity of the law

  • Capable of Representation

DEB/Germany - effective access to court

• there is NO general right to legal aid

• BUT, in certain circumstances to ensure the access to justice, a State may have to provide access to legal aid

Principle 5

Due Notice & Right to be Heard

= to present one’s case and to respond to both the other party & the court

Cases about the Right to be Heard

• Mantovanelli/France

• Krombach/Bamberski (ECJ)

Mantovanelli/France - Right to be Heard/Respond

• In an adversarial hearing, the right to challenge the expert on the evidence that he used to conduct his task (scrutinise/challenge)

• Especially if the evidence was ‘likely to have a preponderant influence on the assessment of the facts by the court’

Krombach/Bamberski (ECJ) - Right to be Heard

• Enforcing court can refuse enforcement of the judgement, if the defendant’s right to a fair trial has been insufficiently protected by the Court of origin (here it was against German public policy)

Principle 9

Structure of Proceedings

• Three phases: pleading, interim & final

• Pleading phase in writing

• Final hearing: concluding arguments

Principle 19

Oral and Written Presentations

• In writing, but parties should have the right to to present oral argument on important substantive/procedural issues

• Principle of Orality

• Principle of adversarial hearing (right)

“The main hearing model” (+ principles)

Principles 9 & 19

1. Pleading phase

   • usually written

   • claims, defences, principal evidence

2. Interim phase

   • orally and/or written

   • procedural aspects, taking of evidence

3. Final phase

   • usually orally

   • remaining taking of evidence, concluding arguments

Reasons (not) to litigate

1. Litigation = default dispute resolution, everyone has a fundamental right of access to court

2. usually public

3. litigation may take a long time (appeals)

4. results in an enforceable judgement

5. Litigation costs (State) but may run long

6. Litigation ultimately causes conflict (winners and losers)