8. Public hearing

Article 6 guarantees to everyone a public hearing in the determination of his civil rights and obligations or of any criminal charge against him. This provision requires that in principle, there should be an oral hearing attended in criminal cases by the prosecutor and the accused, and in other cases by the parties, and that this hearing should be open to the public.

A public hearing is an essential feature of the right to a fair trial.

The purposes of this rule are to protect civil litigants and criminal defendants from secret administration of justice and to ensure greater visibility of justice, maintaining the confidence of the society in the judiciary.

As the Court stated in Axen v. the Federal Republic of Germany, “The public character of proceedings before the judicial bodies referred to in Article 6 (1) protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence… in the courts can be maintained.

With the help of this provision, the press can exercise its function of public watchdog.

Example

The case of Shagin v. Ukraine, 10 December 2009

On 19 May 2000 the Kyiv Prosecutor's Office charged Ihor Shagin with banditism. The proceedings in the Kyiv Court of Appeal, which acted as a first-instance court, lasted from 4 November 2002 until 16 March 2004. As the case had attracted public attention and no court room was big enough for all those wishing to attend, a cinema hall was rented by the court for this purpose.

However, on 23 May 2003 the court decided to hold hearings in camera, stating as follows:

“... The hearing is constantly attended by a person, who, according to him, on the orders of Mr Shagin, audiotapes [the proceedings]. This person does not react to the repeated remarks of the Presiding Judge in this respect. Furthermore, this person has a pistol on him.

The Court, bearing in mind the number of charges, with a view to avoiding disclosure of the statements of witnesses and victims, and in order to safeguard the security of the trial participants…,

RULED:

to hold further hearings of the criminal case against Shagin Igor Igorevich and others in camera”.

The hearings continued in camera in the cinema.

The trial court found the applicant guilty of having formed a criminal organisation.

The European Court noted that initially the Kyiv Court of Appeal implemented unusual measures in order to ensure the attendance of the press and public – it rented a big hall where open hearings took place for the first six months, until it was decided to exclude the public. The trial continued in camera for almost ten months.

The only specific justification given by the trial court in the present case for excluding the public was the presence of a particular individual who was taping the proceedings and who was armed. However, it was not apparent why the presence of one individual called for exclusion of the public: any security issues raised by the individual could have been less far-reaching measures, such as removing him from the court-room. The European Court found that there were no reasons to justify the exclusion of the public from the entirety of the first-instance proceedings.

Having regard to these considerations, the Court concluded that there were a violation of Article 6 § 1 of the Convention owing to the lack of a public hearing in the case.