In both civil and criminal proceedings the hearing of a case should be (a) oral and (b) open to attendance by interested members ofthe public. Judgments should be made public. Courts are required to provide information on the venue and time of court proceedings.. The press and the public may be excluded from all or part of a trial for reasons of morals, public order, national security in a democratic society or when the interest of the private lives of the parties so requires, for example if the case involves children. Limitations resulting in the exclusion of the public (trial in camera) should be narrowly construed.
Comprehensive:
According to article 14(1) of the ICCPR: (1) ‘everyone shall be entitled to a fair and public hearing’[1] (2) ‘any judgment … shall be made public’.[2]
The right to a hearing implies that proceedings be oral so as to offer an opportunity for submission of oral arguments as opposed to submission of documents upon which the case will be decided.[3] In Fredin v Sweden,[4] the ECtHR found a violation of the right to fair trial when a court of first and only instance did not afford the complainant an oral hearing.[5]. In appeal and review proceedings, the right to an oral hearing is determined on a case by case basis. The HRC held in Kartunnen v Finland that ‘the author was entitled to oral proceedings before the Court of Appeal … only this procedure would have enabled the Court to proceed with the re-evaluation of all the evidence submitted by the parties, and to determine whether the procedural flaw had indeed affected the verdict of the District Court’.[6] (See *right to appeal*; *right to be present during trial*). A public hearing entails that the ‘hearing must be open to the general public’[7].Publicity ‘ensures the transparency of proceedings and thus provides an important safeguard for the interest of the individual and of society at large’.[8] The right to a public hearing is ‘not dependent on any request, by the interested party, that the hearing be held in public’.[9] Law and judicial practice should provide for the possibility that members of the public attend if they so wish.
The courts are required to provide information on the venue and time of court proceedings, and provide for other adequate facilities to enable the public to attend the hearing taking into account ‘potential public interest in the case’.[10] There are limitations with regard to the human and physical infrastructure that state authorities need to make available for court proceedings. Thus the ‘failure of the court to make large courtrooms available does not constitute a violation of the right to a public hearing, if in fact no interested member of the public is barred from attending an oral hearing’.[11]
According to article 14(1) of the ICCPR: The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.[12]
Limitations resulting in the exclusion of the public (trial in camera) should be narrowly construed. In Cubasv Uruguay, Ms Cubas was tried in her absence in camera and the judgment was not rendered in public. The HRC held that her rights in terms of article 14(1) of the ICCPR had been violated.[13] Similar findings have been made by the HRC in a number of cases dealing with trials before ‘faceless judges’.[14] In particular in cases dealing with children in camera proceedings may be merited.[15] ‘Even in cases in which the public is excluded from the trial, the judgment, including the essential findings, evidence and legal reasoning must be made public’, except where the exceptions mentioned above are applicable.[16] (See *reasoned judgment*). The right to a public judgment is not exclusive to parties to proceedings in a suit at law since any member of the public could invoke it in their interests even if parties dispense with this right.[17] [1] See also ACHR art 8(5) (only relates to criminal proceedings), ECHR art 6(1).
[2] Art 6 of the ECHR, ‘judgment shall be pronounced publicly’, has been interpreted to not require that a judgment is read out but rather that it must be made public. See Axen v Germany para 31.
[4] Fredin v Sweden (No 2) application 18928/91(ECtHR 1994).
[5] Fredin v Sweden para 22. See as well Rodriguez Orejuela v Colombia, communication 848/1999 (HRC 2002);Guerra de la Espriella v Colombia, communication 1623/2007 (HRC 2010).
//**[6]**//Karttunen v Finland communication 387/1989 (HRC 1992) para 7.3. See further Dudko v Australia, communication 1347/2005 (HRC 2007); RM v Finland, communication 301/88 (HRC 1989); Donskov v Russia, communication 1149/02 (HRC 2008) para. 10.2.
[9] van Meurs v Netherlands communication 215/1986 (HRC 1990) para 6.1.
[10] van Meurs v Netherlands communication 215/1986 (HRC 1990) para 6.2; Riepan v Austria application 35115/97 (ECtHR 2000) (trial held inside a prison).
[11] van Meurs v Netherlands communication 215/1986 (HRC 1990) para 6.2.
[12] See for example, ZP v Canada, communication 341/88 (HRC 1991) where in camera proceedings were held in a sex abuse trial.
In both civil and criminal proceedings the hearing of a case should be (a) oral and (b) open to attendance by interested members ofthe public. Judgments should be made public. Courts are required to provide information on the venue and time of court proceedings.. The press and the public may be excluded from all or part of a trial for reasons of morals, public order, national security in a democratic society or when the interest of the private lives of the parties so requires, for example if the case involves children. Limitations resulting in the exclusion of the public (trial in camera) should be narrowly construed.
Comprehensive:
According to article 14(1) of the ICCPR:
(1) ‘everyone shall be entitled to a fair and public hearing’[1]
(2) ‘any judgment … shall be made public’.[2]
The right to a hearing implies that proceedings be oral so as to offer an opportunity for submission of oral arguments as opposed to submission of documents upon which the case will be decided.[3] In Fredin v Sweden,[4] the ECtHR found a violation of the right to fair trial when a court of first and only instance did not afford the complainant an oral hearing.[5]. In appeal and review proceedings, the right to an oral hearing is determined on a case by case basis. The HRC held in Kartunnen v Finland that ‘the author was entitled to oral proceedings before the Court of Appeal … only this procedure would have enabled the Court to proceed with the re-evaluation of all the evidence submitted by the parties, and to determine whether the procedural flaw had indeed affected the verdict of the District Court’.[6] (See *right to appeal*; *right to be present during trial*).
A public hearing entails that the ‘hearing must be open to the general public’[7].Publicity ‘ensures the transparency of proceedings and thus provides an important safeguard for the interest of the individual and of society at large’.[8] The right to a public hearing is ‘not dependent on any request, by the interested party, that the hearing be held in public’.[9] Law and judicial practice should provide for the possibility that members of the public attend if they so wish.
The courts are required to provide information on the venue and time of court proceedings, and provide for other adequate facilities to enable the public to attend the hearing taking into account ‘potential public interest in the case’.[10] There are limitations with regard to the human and physical infrastructure that state authorities need to make available for court proceedings. Thus the ‘failure of the court to make large courtrooms available does not constitute a violation of the right to a public hearing, if in fact no interested member of the public is barred from attending an oral hearing’.[11]
According to article 14(1) of the ICCPR:
The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.[12]
Limitations resulting in the exclusion of the public (trial in camera) should be narrowly construed. In Cubasv Uruguay, Ms Cubas was tried in her absence in camera and the judgment was not rendered in public. The HRC held that her rights in terms of article 14(1) of the ICCPR had been violated.[13] Similar findings have been made by the HRC in a number of cases dealing with trials before ‘faceless judges’.[14] In particular in cases dealing with children in camera proceedings may be merited.[15]
‘Even in cases in which the public is excluded from the trial, the judgment, including the essential findings, evidence and legal reasoning must be made public’, except where the exceptions mentioned above are applicable.[16] (See *reasoned judgment*). The right to a public judgment is not exclusive to parties to proceedings in a suit at law since any member of the public could invoke it in their interests even if parties dispense with this right.[17]
[1] See also ACHR art 8(5) (only relates to criminal proceedings), ECHR art 6(1).
[2] Art 6 of the ECHR, ‘judgment shall be pronounced publicly’, has been interpreted to not require that a judgment is read out but rather that it must be made public. See Axen v Germany para 31.
[3] HRC General Comment 32, para 28.
[4] Fredin v Sweden (No 2) application 18928/91(ECtHR 1994).
[5] Fredin v Sweden para 22. See as well Rodriguez Orejuela v Colombia, communication 848/1999 (HRC 2002);Guerra de la Espriella v Colombia, communication 1623/2007 (HRC 2010).
//**[6]**// Karttunen v Finland communication 387/1989 (HRC 1992) para 7.3. See further Dudko v Australia, communication 1347/2005 (HRC 2007); RM v Finland, communication 301/88 (HRC 1989); Donskov v Russia, communication 1149/02 (HRC 2008) para. 10.2.
[7] HRC General Comment 32 para 29.
[8] HRC General Comment 32 para 28.
[9] van Meurs v Netherlands communication 215/1986 (HRC 1990) para 6.1.
[10] van Meurs v Netherlands communication 215/1986 (HRC 1990) para 6.2; Riepan v Austria application 35115/97 (ECtHR 2000) (trial held inside a prison).
[11] van Meurs v Netherlands communication 215/1986 (HRC 1990) para 6.2.
[12] See for example, ZP v Canada, communication 341/88 (HRC 1991) where in camera proceedings were held in a sex abuse trial.
[13] Cubas v Uruguay communication 70/1980.
[14] Becerra Barney v Colombia communication 1298/2004, Carranza v Peru communication 1126/2002.
[15] P and B v United Kingdom applications 36337/97 & 35974/97 (ECtHR 2001).
[16] HRC General Comment 32 para 29.
[17] M Novak UN Covenant on Civil and Political Rights: CCPR Commentary (2005) 329.