6. Tribunal established by law

The term established by law is intended to ensure that the judicial organisation does not depend on the discretion of the executive, but that it is regulated by law emanating from parliament.

The requirement that a tribunal is established by law applies not only to the institutional establishment, but also to the specific composition in a particular case or even to the limits of tribunal jurisdiction.

Example

The case of Veritas v. Ukraine, 13 November 2008

The applicant company lodged a claim with the Dnipropetrovs’k Regional Commercial Court against the Commercial Bank seeking compensation for damages.

The court found against the applicant company. Dnipropetrovs’k Regional Commercial Court of Appeal dismissed an appeal lodged by the applicant company and upheld the decision of the first-instance court.

The Higher Commercial Court, on the applicant company’s appeal, cancelled the decisions of the lower courts and found for the applicant company.

The Supreme Court of Ukraine, upon appeal by the Bank, cancelled the decision of the Higher Commercial Court, and upheld the decisions of the first-instance and the appellate courts.

The European Court noted that the Supreme Court’s competence under the Code of Commercial Procedure was limited to review of the decisions of the Higher Commercial Court, as it could only have cancelled the decision of the Higher Commercial Court, remitted the case for fresh consideration or nullified the proceedings. Instead, the Supreme Court upheld the decision of the Court of Appeal, without giving any reasons for exceeding its jurisdiction, when no such action was provided for under the Code of Commercial Procedure. The Court concluded that the Supreme Court had acted not as a “tribunal established by law”, as it overstepped the limits of its jurisdiction, which were clearly laid down in the Code of Commercial Procedure.

7. Equality of arms

The right to a fair hearing incorporates the principle of equality of arms.

This means that everyone who is a party to proceedings must have a reasonable opportunity of presenting his case to the court under conditions which do not place him/her at a substantial disadvantage vis-à-vis his/her opponent. A fair balance must be struck between the parties.

These principles apply to both criminal and civil proceedings.

Example

The case of Menchinskaya v. Russia, 15 January 2009

As the unemployment allowances were paid to the applicant after a substantial delay and, as she believed, their calculation was not correct, in March 2000 she sued the Norilsk Employment Centre for the allowance arrears, adjusted for inflation, and interest thereon. The Norilsk Town Court allowed the applicant's claims in part.

The applicant lodged an appeal, arguing that the claims rejected by the first-instance court should have been granted.

The Norilsk Employment Centre lodged an appeal. It claimed that labour legislation did not provide for an interest on unemployment allowances and therefore requested that the judgment in this part be quashed.

The Norilsk Town Prosecutor filed an appeal (protest) against the judgment, exercising his power under the Code of Civil Procedure. In his view, no interest was payable in respect of belated unemployment allowances, thus he requested the Court of Appeal to quash the judgment in this part. The Prosecutor also supported the part of the judgment which rejected the remainder of the applicant's claims.

The Krasnoyarsk Regional Court up held the arguments made by the Employment Centre and the prosecutor. It quashed the first-instance court's judgment in the part granting the applicant some amount as interest on belated payments.

The European Court stated that the principle of equality of arms is one element of the broader concept of fair trial, within the meaning of Article 6 § 1 of the Convention. It requires “a fair balance between the parties”.

As the Government underlined, the prosecutor in his protest raised the same issues of interpretation of domestic legislation as the Employment Centre did.

The European Court considered that while the Norilsk Town Prosecutor had legal grounds under the domestic legislation to join the proceedings, the instant case did not present any special circumstances justifying his intervention.

The Court found that the repeating by the prosecutor of the Employment Centre's arguments on points of law, unless it aimed at influencing the court, appeared meaningless.

The Court concluded that the prosecutor's intervention in the appeal proceedings on the applicant's claim undermined the principle of equality of arms.