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(b)
The access and hearing rights only apply to rules and proceedings which are
decisive of rights and obligations
The scope of Art 6(1) of the ECHR in relation to civil cases is confined by its opening
sentence :-
"In the determination of his civil rights and obligations ......, everyone is entitled to a fair and
public hearing within a reasonable time by an independent and impartial tribunal established
by law."
The effect of these words, which is well-established in the European case-law, was
summarised in Jacobsson v Sweden (No 2)
as follows :-
"...... according to the principles laid down in its case-law ...... [the E Ct HR] must ascertain
whether there was a dispute (‘contestation') over a ‘right' which can be said, at least on
arguable grounds, to be recognised under domestic law. The dispute must be genuine and
serious; it may relate not only to the existence of a right but also to its scope and the manner
of its exercise; and the outcome of the proceedings must be directly decisive for the right in
question."
In other words, the access and hearing rights are only engaged where :-
(a)
the person asserting those rights has an arguable entitlement to a civil right;
and,
(b)
where the rules or proceedings said to be incompatible with the access and
hearing rights are decisive of that person's rights and do not involve purely
interlocutory or case management issues.
The latter requirement was put by the Strasbourg court in Fayed v United Kingdom
as follows :-
"In order for an individual to be entitled to a hearing before a tribunal, there must exist a
‘dispute' (‘contestation') over one of his or her civil rights or obligations. It follows, so the
Court's case-law has explained, that the result of the proceedings in question must be directly
decisive for such a right or obligation, mere tenuous connections or remote consequences not
being sufficient to bring Article 6 para. 1 into play ......"
Notes
Case No (8/1997/792/993) Judgment, 19.2.98 at §38.
Lithgow v United Kingdom (1986) 8 EHRR 329 at §192; Powell and Rayner v United Kingdom
(1990) 12 EHRR 355 at §36.
(1994) 18 EHRR 393 at §56.
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