Public hearing

Article 6, paragraph 1 of the ECHR guarantees the right to a public hearing, as one of the fundamental principles of the right to a fair trial referred to in Article 6, paragraph 1 of the ECHR.¹³²⁶ In addition to the exceptions to this principle, which are stated in the 2^nd sentence, the parties to the proceedings may waive this right either tacitly or explicitly.¹³²⁷ The principle of a public hearing protects from “a closed-door trial”, carried out in the absence of public scrutiny, and it aims at promoting the confidence of the public in the judiciary.¹³²⁸ For that matter, publicity of the proceedings in criminal law is a prerequisite for the criminal law to achieve its integrative and preventive purpose¹³²⁹ and to act with the aim to fight crime and to develop the social discipline of citizens.¹³³⁰

In principle, in each individual case there must be at least one chance for an accused person to take part in a public hearing pertaining to the substance of the case, and not only to the admissibility of the case, unless exceptions stated in sentence 2 are applied. This applies, nevertheless, only to the proceedings during which the well-foundedness of a criminal charge against some person is being deliberated on. Criminal proceedings carried out in the absence of the accused, in essence, are not necessarily in contravention of the Convention. However, once the convicted person has learnt of a judgment, he/she must have a chance to renew criminal proceedings during which he/she may request that a public hearing be held.¹³³¹ Therefore, legal provisions providing for a public hearing only when and if a party to the proceedings has requested it satisfy the imperatives laid down in Article 6, paragraph 1 of the ECHR,

although in practice the majority of the proceedings are completed without holding a public hearing, particularly concerning disputes of a purely technical nature.¹³³² Yet, the very possibility to hold a public hearing does not satisfy the requirement of publicity of the respective hearing even when the very law does not prohibit explicite that the public be barred from the proceedings; for, the non-existence of the very prohibition to bar the public may not lead one to conclude that the publicity of the proceeding was made possible.¹³³³ Absence of family members and representatives of the international community at a hearing does not constitute in itself evidence that the hearing has not been held in public, particularly in such cases when the minutes from the hearing apparently point to the public nature of the hearing.¹³³⁴

Article 6 of the ECHR does not necessarily also require a public hearing to be held in the appellate proceedings.¹³³⁵ The important thing here is the nature of the dispute in the respective case. Unless there is a discussion pertaining to the substratum of the facts in the appellate proceedings, there is no need to hold a public hearing.¹³³⁶ Otherwise, if a public hearing had not been held in the first instance proceedings, which is in contravention of the Convention, such omission might be corrected by holding a public hearing in the second instance proceedings.¹³³⁷

Given that, according to domestic law, within the meaning of Article 6 of the ECHR,¹³³⁸ a “criminal charge” may be deliberated upon also by authorities which apparently have no judicial character (tribunal), such as the competent authorities for the conduct of offence and disciplinary procedures, Article 6 of the ECHR requires that a public hearing be held before at least one institution, i.e., an authority with the character of a “court” as provided for in the Convention.¹³³⁹ The obligation to hold a public hearing in civil and administrative procedures shall depend on the special nature of a particular case.¹³⁴⁰