European Court of Human Rights Considers the Right to a Fair Hearing in Civil Proceedings

Vilho Eskelinen & Ors v Finland [2007] ECHR [GC] 63235/00 (19 April 2007)

In a judgment handed down on 19 April 2007, the Grand Chamber of European Court of Human Rights considered the scope of the right to a fair hearing in the context of civil proceedings, with particular reference to the acceptable length of proceedings and the necessity of an oral hearing.

Facts The applicants were Finnish public servants, including five police officers and one administrative assistant. In 1990, after their district was merged with another, the applicants lost individual wage supplements. The applicants alleged that the Provincial Police Command promised in 1990 that their losses would be compensated, but never were. The applicants sought compensation from the Juopio County Administrative Board in 1993. Four years later, in 1997, the Administrative Board rejected the application. The applicants appealed to the Kuopio County Administrative Court later in 1997, requesting an oral hearing to establish relevant facts. The Administrative Court dismissed the application in 1998, stating that it was ‘not necessary’ to receive oral testimony from the applicants. The applicants appealed in 1998 to the Supreme Administrative Court, again seeking an oral hearing. This court dismissed the application in 2000, again stating that an oral hearing was not necessary. Issue The applicants lodged an application against Finland with the ECtHR alleging that the denial of an oral hearing and the excessive length of proceedings breached art 6 of the of the ECHR, which provides that ‘[i]n the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time’. Findings Length of Proceedings After dealing with a threshold issue over the applicability of art 6, the ECtHR went on to consider the scope and content of the art 6 right to a fair trial. It considered first the relevance of the right to the length of domestic proceedings, noting that reasonableness will be assessed ‘in the light of the particular circumstances of the case, in particular the complexity of the case and the conduct of the applicant and relevant authorities’ (at [67]). It found on this point that the case was neither complex nor exceptional. It also stated that ‘in civil matters the reasonable time may begin to run, in some circumstances, even before the issue of the writ commencing proceedings before the court to which the plaintiff submits the dispute’ (at [65]). Considering the length of the actual proceedings in this case, the ECtHR found that the four years taken by the Administrative Board to examine the case had ‘no sufficient explanation’. It did not find any issue with the length of time taken in the Administrative Court or Supreme Administrative Court proceedings. However, the delay in the Administrative Board proceedings was held to be in violation of the Convention. The ECHR awarded each applicant €2500 for distress and frustration resulting from the length of the proceedings. Oral Hearing The ECtHR then went on to consider the role of an oral hearing in the provision of a fair trial. The ECtHR first indicated that the relevant principals were expressed in its earlier judgment in Jussila v Finland ([GC] No 73053/01, §§40-45). It noted that the applicants’ purpose in requesting a hearing was to provide testimony that the provincial officials had promised that the individual salary losses would be compensated, while the Finnish government had argued that an oral hearing was unnecessary as the relevant information could be conveyed in written submissions. The Court agreed with Finland’s submission that the relevant issues could be decided on the basis of written submissions (at [73]). It further noted that while it was for the courts to decide whether an oral hearing was necessary, the applicants were able to request such a hearing and the administrative courts gave the request consideration and reasons. Given that the applicants were given ‘ample opportunity to put forward their case in writing and to comment on the submissions of the other party’, the ECtHR held that the right to a fair hearing was not violated notwithstanding that no oral hearing was afforded. Implications for the Victorian Charter Section 32(2) of the Charter states that ‘[i]nternational law and the judgments of domestic, foreign and international courts and tribunals relevant to a human rights maybe considered’ when interpreting a provision of the Charter. Accordingly, it is likely that the ECtHR’s decision in Vilho Eskelinen will be of relevance for Victorian courts called upon to consider s 24(1) of the Charter, which provides that persons charged with criminal offences or, relevantly, parties to a civil proceeding, have ‘the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing’. The most salient finding will likely be that an oral hearing is not necessarily a requisite element of a fair hearing in all circumstances, particularly where the facts sought to be proven may be presented equally well in written form. The ability of the applicant to apply for an oral hearing, and be provided with reasons for any denial, may also be a factor that suggests the right has been fulfilled notwithstanding no hearing being granted. The ECtHR’s finding in relation to lengthiness of proceedings may also be of relevance in considering the Charter right to a fair hearing, although it is notable that s 24(1) of the Charter right does not guarantee a fair hearing within ‘a reasonable time’, as is the case for the ECHR right. The decision is available at 1166DEA398649&key=61926&sessionId=9799508&skin=hudoc-en&attachment=true Tamara Vu, Human Rights Law Group, Mallesons Stephen Jaques

Detailed case note.