“Court, established by law” as an element of the right to a fair trial in civil cases

Keywords: court, established by law; the right to a fair trial; the composition of the court; civil jurisdiction; Convention for the Protection of Human Rights and Fundamental Freedoms; European Court of Human Rights

Abstract

The article is devoted to such an element of the right to a fair trial as “court, established by law”. According to the Art. 6 par. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

“Court, established by law” is an element of the right to a fair trial which is directly mentioned in this article of the ECHR. European Court of Human Rights use evaluative approach in interpretation of this notion identifying from case to case main elements of the right to a court, established by law. It is substantiated that this requirement covers not only the legal basis for the existence of a “court”, but also the court's compliance with the rules it should follow, as well as the composition of the court in a particular case.

Particularly, this right includes institutional, procedural and competence elements. Institutional element is connected with the requirement that particular court should be established by law, the particular person should become a judge with strict conformity with the law and such person should have the power to conduct the trial in civil cases according to the national legislature. Procedural element of the “court, established by law” includes the lawful grounds for participation of particular judge in the trial. Competence element reflects on the one hand strict compliance with the jurisdictional rules, and on the other, using by the court only that powers, which is prescribed by procedural law.

References

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How to Cite
Tsuvina, T. (1). “Court, established by law” as an element of the right to a fair trial in civil cases. Law Review of Kyiv University of Law, (2), 137-141. https://doi.org/10.36695/2219-5521.2.2019.24
Section
The issues of civil law, commercial law, labour law and social security law of U