Procedural justice requires in particular that all the persons concerned by the outcome of the proceedings are guaranteed the right to be heard. As Seneca observed in Medea: Qui statuit aliquid parte inaudita altera, aequum licet statuerit, haud aequus fuit. The more far-reaching the effects of the Court's judgments the more vital it is to ensure that all the persons concerned have the right to be heard. Developments in case-law and practice regarding the effects and execution of the Court's judgments may call for adjustments to be made to the applicable procedural rules.
8.
In examining applications alleging human rights violations in civil proceedings or arising from judicial decisions in civil cases, determining disputes between individuals or legal persons governed by private law, the rights of the party opposing the applicant party must never be overlooked. That is because the Court's finding of a violation of the Convention on account of a judicial decision in a civil case may have practical and legal consequences for the other parties to the civil proceedings and for the implementation of their rights. This problem is particularly acute in the case of applications against States whose legal systems (like that in Ukraine) allow the reopening of civil proceedings following a judgment of the Court.
It should be noted here that, in its judgment in Ruiz-Mateos v. Spain (23 June 1993, Series A no. 262), the Court examined the right of the persons concerned to be heard in constitutional review proceedings. The issue had arisen in the context of the relationship between the civil proceedings and the constitutional review proceedings. In that case a Spanish court, in the course of a civil dispute, had referred a preliminary question to the Constitutional Court as to the constitutionality of the legislation applicable in the case. The Court found a violation of the Convention on the grounds that, in the proceedings for concrete review of the legislation before the Constitutional Court, the Spanish authorities had not secured to one of the parties to the civil proceedings the right to submit observations on the opposing party's position regarding the issue of the constitutionality of a statute (§ 67).
9.
It is undeniable that the procedure whereby the Court examines individual applications has many specific features distinguishing it from procedures before the various domestic supreme courts. While a judgment of the Court may be important as regards implementation of the rights of other parties to the domestic proceedings, it does not establish rights or obligations for them with direct effect in the Contracting Parties. However, given that in the types of situation considered third parties are often affected by the outcome of the proceedings before the Court, the approach taken in the case of Ruiz-Mateos in the context of the relationship between civil proceedings and proceedings to review legislation also holds true in the context of the relationship between domestic civil proceedings and proceedings before the European Court of Human Rights.
The Convention does not guarantee the other parties to domestic proceedings who are concerned by the impugned judicial decision the right to be heard by the Court. It is true that under Article 36 § 2 of the Convention, as supplemented by Rule 44 § 3 of the Rules of Court, the President of the Chamber may, in the interests of the proper administration of justice, authorise or invite any person concerned who is not the applicant to submit written comments or, in exceptional circumstances, to take part in the hearing. The Court sometimes makes use of this possibility, in particular in cases dealing with family law. The approach adopted strikes me as inadequate, as the option, left to the discretion of the President of the Chamber, of hearing the views of a person who is concerned does not equate to a guarantee of the right to be heard. It is not always used where the rights of third parties are concerned.
When sitting in cases dealing with violations of the Convention in civil proceedings or arising from a judicial decision in a civil case, I invariably wonder whether the other parties concerned should not be granted the right to submit observations to the Court. Is it right to give a decision without hearing the other parties concerned? Ensuring that they have the right to be heard would not only give greater effect to the principles of procedural justice, but in many cases would also afford greater insight into the issues under examination.
Given the case-law developments referred to above, the rules applicable to the procedure for the examination of applications by the Court do not confer a sufficient degree of procedural legitimacy on the decisions given. Against that background, it is time to rethink the procedure before the Court in order better to adapt it to the requirements of procedural justice.