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Judge of the Supreme Court in the Civil Cassation Court Pavlo Parkhomenko spoke at a webinar for lawyers titled “The Right to a Fair Trial: ECtHR Case Law and Features of National Application of Law” about how the European Court of Human Rights approaches the right to a fair trial.
During the lecture, Pavlo Parkhomenko focused on the following issues:
The lecturer drew attention to the fact that Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms guarantees “procedural” fairness (procedural guarantees for the parties), which in practice is understood as adversarial proceedings in which the arguments of the parties are heard on equal terms before the court (ECtHR judgment in the case of Star Cate Epilekta Gevmata and Others v. Greece).
Fairness in this Article serves to determine whether the applicant was given sufficient opportunity to present his or her case and to challenge the evidence he or she considered unreliable, and not to assess the correctness or incorrectness of the decision taken by the national court (Karalevičius v. Lithuania). The said Article provides for an examination of fairness as a whole (all stages and opportunities afforded to the applicant), rather than an isolated procedural shortcoming as such (para. 49 of the judgment in the case of Stran Greek Refineries and Stratis Andreadis v. Greece).
Pavlo Parkhomenko noted that Article 6 of the Convention does not protect the right to bring someone to criminal liability, the right to appeal, or the right of the state to apply to a court. It does not guarantee a result in favour of a party (para. 201 of the judgment in the case of Andronicou and Constantinou v. Cyprus), nor does it allow the ECtHR to act as a court of fourth instance — that is, to re-establish the facts of the case or re-examine violations of national legislation (Bernard v. France).
The right to a fair trial is not an absolute right and may be subject to restrictions, but only in such a way and to such an extent as not to impair the very essence of these rights (Stanev v. Bulgaria, Philis v. Greece). Procedural restrictions will not be compatible with Article 6 § 1 of the Convention if they do not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved. In general, procedural rules must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired (Karakutsya v. Ukraine).
The lecturer analyzed the individual elements necessary to ensure a fair judicial hearing, which are explicitly mentioned in Article 6 § 1 of the Convention:
In addition, in its judgments the ECtHR has identified other requirements, including:
At the same time, the Court noted that these elements are not exhaustive.
Regarding the requirement of a public hearing, the ECtHR stated in the case of Miller v. Sweden that the exceptional nature of the circumstances that may justify the absence of a hearing largely depends on the character of the issue to be decided by the competent national court, rather than on the frequency of such situations. In the judgment in Helmers v. Sweden, it was noted that the absence of a hearing in courts of second and third instance may be justified by the specific features of the proceedings, provided that a hearing was held at first instance.
As for the reasonable time requirement, the ECtHR has established the following criteria for its assessment:
Speaking about the right of access to a court, Pavlo Parkhomenko noted that, in general, it is considered acceptable for national legislation to establish procedural restrictions and requirements for the proper administration of justice, but they must not undermine the very essence of the right of access to a court. If a state provides for the possibility of appealing to a higher court, it has the right to set conditions for such an appeal — both substantive and procedural, such as court fees, time limits, mandatory legal representation, etc. (Stepenska v. Ukraine).
The lecturer pointed out that the establishment by law of categories of cases that are not subject to cassation appeal does not automatically constitute a violation of Article 6 of the Convention. He drew attention to the fact that the ECtHR found it lawful for the Supreme Court to refuse to consider a case concerning payments in a labor dispute due to its minor significance.
In the decision of 9 October 2018 on inadmissibility in the case of Azyukovska v. Ukraine, the Court held that the application was inadmissible ratione materiae within the meaning of Article 35 § 3 (a) of the Convention and should be rejected pursuant to Article 35 § 4. The ECtHR noted that the application of the minor-significance criterion in this case was foreseeable, the case had been examined by two instances with full jurisdiction, the applicant had not demonstrated the existence of any other exceptional circumstances that, under the Code, could have required cassation review, and the Supreme Court’s refusal was therefore justified.
The decision also states that, in the context of analyzing the application of the ratione valoris criterion regarding access to higher judicial instances, the ECtHR also took into account the presence or absence of any issue concerning the fairness of the proceedings conducted by the lower courts. However, in this case, to the extent that the applicant raised issues regarding the fairness of the proceedings in the courts of first and second instance, the ECtHR did not find any violation of the procedural guarantees of Article 6 § 1 of the Convention.
Presentation by Pavlo Parkhomenko – https://court.gov.ua/storage/portal/supreme/prezentacii_2025/Prezent_Pravo_na_spravedl_sud_prakt_ESPL_osobl_nac_zastos.pdf
The webinar was organized by the Higher School of Advocacy of the National Bar Association of Ukraine.
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