ILOAT Reform

Opinion prepared by Louise Doswald-Beck
ILO: The right to a fair hearing Interpretation of international law

OPINION

Introduction

This presentation is based on the provisions of international treaties and their interpretation by their supervisory bodies. The most relevant provisions are:

• Article 14 of the International Covenant on Civil and Political Rights, 1966
• Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950
• Article 8 of the American Convention on Human Rights, 1969
• Articles 7 and 26 of the African (Banjul) Charter on Human and Peoples’ Rights, 1981.

These texts are very similar and, even more significantly, so is the jurisprudence of the treaties’ supervisory bodies. Therefore, we can speak of principles of customary law.

The concept of the right to a fair hearing

It should first be emphasized that the supervisory bodies have not restricted themselves to the wording of the treaties but have made assessments on the basis of the need for a fair hearing, namely, whether objectively and subjectively justice has been done. Thus, two aspects have been emphasized: that "justice must not only be done but must be seen to be done" and that the human rights treaties "guarantee not rights that are theoretical or illusory but rights that are practical and effective" (Artico v Italy, European Court of Human Rights).

1. Access

Everyone is entitled to have his/her case heard and to be guaranteed a fair hearing. This right is not restricted to criminal proceedings but applies also to rights and obligations of a civil nature. The American Convention on Human Rights states that the law is also applicable to labour issues. The jurisprudence of the other supervisory bodies interprets this right very broadly, and it generally includes issues decided by an administrative tribunal.

N.B. Ringeisen v Autriche, European Court of Human Rights, "… it is not necessary that…both parties to the proceedings should be private persons…the character of the legislation which governs how the matter is to be determined (… administrative law, etc.) and that of the authority which is invested with jurisdiction in the matter (…administrative body, etc.) are therefore of little consequence".

 

2. Right to an independent and impartial tribunal

(in particular, Findlay v the United Kingdom, European Court of Human Rights).

 

2.1 Concept of a tribunal

A body is a "tribunal" if it is independent from the administration, can decide cases without interference from the administration, its members are themselves independent and impartial, and due legal process is guaranteed

2.2 Independence

The method of appointment and the duration of the term of office should be taken into account, as well as the existence of protection against outside influence and the extent to which there is, or is not, the appearance of independence. A general comment of the United Nations Human Rights Committee stated the importance of ensuring the independence of courts and, in that respect, the following characteristics: " the manner in which judges are appointed, the qualifications for appointment, and the duration of their terms of office; the condition governing promotion, transfer and cessation of their functions and the actual independence of the judiciary from the executive branch and the legislative" (United Nations Human Rights Committee, Twenty-first session (1984), Article 14, General Comment 13).

2.3 Impartiality

The tribunal should not subjectively favor any particular viewpoint or have any personal bias. It should be objectively impartial, that is to say, it should offer sufficient guarantees to remove any reasonable doubt in this respect.

3. Right to equality of arms

All systems insist on this point: all persons are entitled to equal protection before a competent court or tribunal. Thus, both parties should have access to the documents and evidence that are submitted to the court in the proceedings. Both parties have the right to call and to examine witnesses. The European Court has also stated that this principle implies the need for an adversarial procedure, which means that each party must be able to answer the legal allegations or assessments of the other parties to the proceedings. N.B. two cases before the United Nations Human Rights Committee (Jansen-Gielen v the Netherlands; Aarela and Nakkalajarvi v Finland) where it was stated that "it is a fundamental duty of the courts to ensure equality between the parties, including the ability to contest all the argument and evidence adduced by the other party".

In Bulut v Austria: "each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent".

4. The right to be present

Several cases before the United Nations Human Rights Committee and before the European Court of Human Rights have underlined the importance of the participation of the persons concerned in the proceedings, above all when a ruling must be delivered on both questions of law and questions of fact. Thus, when a case must assess the facts in the context of the law in order to rule on the validity of a dispute, it is necessary for the individuals concerned to be present.

5. Right to a public hearing

This right consists of both the right of the parties to be present at the hearing and the right of the public to have access to the hearing. The aim is to ensure that justice is done and is seen to be done, and this cannot be verified if hearings are held in secret. This was underlined by the European Court of Human Rights in a defamation case: Helmers v Sweden: "the public character of proceedings before the judicial bodies…protects litigants against the administration of justice in secret with no public scrutiny". It added that a person bringing proceedings must be sure "that his case was being determined by a tribunal, the independence and impartiality of which he could verify".

(The generally accepted exceptions to this relate to cases involving juveniles and divorce matters.)

6. The obligation to provide reasoned decisions

This obligation is part of the concept of a fair hearing and was reiterated by the European Court of Human Rights in an administrative matter (administrative law on the quality of milk: Van de Hurk v the Netherlands). This obligation is not only essential for justice to be seen to be done, but also to provide a valid right of appeal.

7. The right to representation and the right of appeal

   It is generally accepted that during proceedings both parties have the right to representation of their choice and that this right includes the free services of a lawyer if it is in the interests of justice to have one. Usually, this aspect is taken into consideration in criminal trials. However, it cannot be said that this principle is not applicable in civil or administrative procedures. What is important is to know whether the presence of a lawyer is necessary to ensure a fair hearing: therefore, if the matter is legally complex, it would be necessary to have a lawyer; if one party has access to a lawyer to prepare his case, then the other party must have the same access otherwise there is no equality of arms. The same applies to the right of appeal – if one party has this right, the other must also have it, and in the same conditions. Jurisprudence has, above all, underlined the importance of transparency in procedures of the first instance and a decision that has been satisfactorily reasoned in order to be able to enjoy an effective, and not illusory, right of appeal.

Louise Doswald-Beck
Secretary-General, International Commission of Jurists

Geneva, 13 November 2002

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