The retrospective effect of the law and the right to a fair trial in civil cases in the context of the rule of law

Keywords: retrospective effect of law; the right to a fair trial; Rule of Law; equality of arms; Convention for the Protection of Human Rights and Fundamental Freedoms; European Court of Human Rights

Abstract

The article is devoted to the problem of the retroactive effect of the law in terms of the right to a fair trial in civil cases, provided in par. 1 of art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and the rule of law principle. Venice Commission in its Report on the Rule of Law determined that one of the prominent aspects of the rule of law is principle of legal certainty. The retroactivity of legislation goes against the principle of legal certainty, at least in criminal law, since legal subjects have to know the consequences of their behavior; but also in civil and administrative law to the extent it negatively affects rights and legal interests.

According to par. 1 art. 6 ECHR in determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. It is argued that this issue is being considered by the ECtHR in the light of compliance with the requirement of equality of arms as an element of the right to a fair trial in civil cases, according to which each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent.

Whereby violations of the equality of arms may take place, when there is: a) the intervention of the legislature by adopting new retrospective provisions in order to influence proceedings already pending before the court, other than on compelling grounds of the general interest – with the administration of justice designed to influence the judicial determination of a dispute; b) a review of court decisions that have entered into force on newly discovered circumstances because of the adoption of new regulations.

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How to Cite
Tsuvina, T. (1). The retrospective effect of the law and the right to a fair trial in civil cases in the context of the rule of law. Law Review of Kyiv University of Law, (3), 172-176. https://doi.org/10.36695/2219-5521.3.2019.28
Section
The issues of civil law, commercial law, labour law and social security law of U