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3.3
The principles
(a)
The access and hearing rights are not absolute
It is well-established in the international jurisprudence (likely to be adopted by the
Hong Kong courts
) that the access and hearing rights are not absolute but may be
subject to appropriate restriction. Since the earliest days of the E Ct HR, it has been
pointed out that the right of access by its very nature calls for regulation by the State.
Indeed, the non-absolute nature of the right to a fair and public hearing is expressly
indicated in Art 6(1) itself (as well as in BOR 10), since provision is made for
excluding the press and the public from all or part of a trial for the reasons specified.
It has often been re-iterated by the Strasbourg court
that, quite apart from the cases
specifically provided for, a limitation on the access and hearing rights may be valid
provided that :-
(a)
the restriction pursues a legitimate aim;
(b)
there is a reasonable proportionality between the means employed and the aim
sought to be achieved; and,
(c)
the restriction is not such as to impair the very essence of the right.
Accordingly, the fact that a procedural rule has the effect of restricting any aspect of
the access and hearing rights does not necessarily mean that it is unconstitutional. It
may be a justifiable limitation, some examples of which are discussed below.
Notes
See the Decision of the Appeal Committee of the Court of Final Appeal in Chow Shun Yung v Wei
Pih Stella & Anr (Unreported) FAMV No 2 of 2003, 14 May 2003.
Golder v United Kingdom (1975) 1 EHRR 524 at §38.
For instance, in Ashingdane v United Kingdom (1985) 7 EHRR 528 at §57 and Tolstoy-Miloslavsky v
United Kingdom (1995) 20 EHRR 442 at §59.
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