Abrahamian v Austria [2008] ECHR 35354/04 (10 April 2008)
The European Court of Human Rights has held that the right to a fair hearing requires an oral hearing which may only be dispensed of in exceptional circumstances.

Facts

The applicant, a medical practitioner, appealed to the Administrative Court against a decision of the Vienna Medical Association, a public law body established under the Medical Practitioner’s Act with compulsory membership, to levy compulsory contributions.

The applicant and the Association both made written submissions and, on 5 December 2003, the applicant also requested an oral hearing.  On 27 February 2004, the Administrative Court dismissed the applicant’s complaint without holding a public hearing.

The applicant subsequently complained to the European Court of Human Rights regarding the lack of an oral hearing.  She relied on art 6(1) of the European Convention on Human Rights, which provides that, ‘In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing … by [a] … tribunal’.

The Government argued that the Administrative Court was dealing with ‘exclusively legal issues’ and that it ‘could therefore refrain from holding a hearing, even though the applicant had requested one’.

The applicant submitted that she had explicitly requested a hearing and was thus entitled to be heard.  She further contended that the lack of an oral hearing meant that ‘the facts were not properly assessed’.

 Decision

The Court reiterated its jurisprudence that, in principle, a fair hearing requires a public and oral hearing (see, eg, Malhous v Czech Republic [2001] ECHR 33071/96 [GC]; Oganova v Georgia [2007] ECHR 25717/03 (13 November 2007)).

It further held that, in certain cases ‘in which exclusively legal or highly technical questions are at stake’ (see, eg, Schelling v Austria [2005] ECHR 55193/00), the requirements of a fair trail may be fulfilled even in the absence of an oral hearing, but that this was not such a case.

In the present case, the applicant expressly requested an oral hearing with the Administrative Court, which was refused without reasons.  According to the European Court of Human Rights,

There did not appear to have been any exceptional circumstances that might have justified dispensing with a hearing.  The Administrative Court was the first and only judicial body before which the applicant’s case was brought; it was able to examine the merits of her complaints; the review addressed not only issues of law but also important factual questions.  This being so, the Court considers that her right to a ‘public hearing’ included an entitlement to an ‘oral hearing’.

Accordingly, the Court held that there had been a violation of art 6(1) of the Convention.

 Relevance to the Victorian Charter

This decision may be relevant to the interpretation and application of s 24 of the Victorian Charter, which enshrines the right to a fair and public hearing in both criminal and civil matters.

The decision confirms that, prima facie, the right to a fair hearing subsumes the right to an oral hearing.  Any limitations on the right to an oral hearing pursuant to s 7 of the Charter are only likely to be permissible in exceptional circumstances, such as that the matter concerns only questions of law or is before an appellate court in circumstances where the first instance court did provide a full oral hearing.  The decision also suggests that reasons should be provided in any case in which an oral hearing is requested but denied.

The decision confirms that limitations on the right to a fair hearing in the interests of efficiency, case management, timeliness and the like must not impair the ‘essence’ of the right itself.  As the ACT Supreme Court held in R v McBride [2007] ACTSC 8 (13 February 2007), ‘issues of practicality and convenience must give way to the overwhelming interest, now recognised by the Human Rights Act 2004, that every accused must be afforded a fair trial’.

Philip Lynch is Director of the Human Rights Law Resource Centre