European Convention on Human Rights - Case Study Example

The Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights or ECHR) was adopted in 1950 to protect basic civic and political human rights and fundamental freedoms of persons. Article 6 ECHR affords a person right to a fair trial. Specifically, Article 6 ECHR enumerated the rights to a fair trial: right to a public hearing, right to an independent and impartial tribunal, right to be presumed innocent, and for those on trial for a crime, the right to have adequate time and facilities to prepare legal defence, access to legal representation, right to cross-examine witnesses, and the right to have an interpreter.1 In the context of arbitration proceedings, the ECHR right to a fair trial (right to a fair and public hearing within a reasonable time by an independent and impartial tribunal) requires an accurate and objective expert evidence pursuant to the relevant requirements of the Arbitration Act 1996 (the "Act") and the Civil Procedure Rules (CPR). The CPR provides under Part 35.3 that: "(1) It is the duty of an expert to help the court on the matters within his expertise. (2) This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid." Moreover, Part 35.4 of the CPR likewise provides that: "(1) No party may call an expert or put in evidence an expert's report without the court's permission. (2) When a party applies for permission under this rule he must identify - (a) the field in which he wishes to rely on expert evidence; and (b) where practicable the expert in that field on whose evidence he wishes to rely. (3) If permission is granted under this rule it shall be in relation only to the expert named or the field identified under paragraph (2). (4) The court may limit the amount of the expert's fees and expenses that the party who wishes to rely on the expert may recover from any other party." Hence, it is settled that under the CPR, the experts have an overriding duty to the court and that the court has the power to restrict expert evidence. Clearly, these provisions in the CPR is geared towards the objective of satisfying Article 6 ECHR affording a party to a dispute a right to a fair trial by having his case heard before an independent and impartial tribunal that has power to control and restrict expert evidence. The Act, on the other hand, has several provisions ensuring that a party to an arbitration proceeding is afforded his right to a fair trial as a guaranteed in Article 6 ECHR. Section 1 provides: "1. The provisions of this Part are founded on the following principles, and shall be construed accordingly-- (a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense; (b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest; (c) in matters governed by this Part the court should not intervene except as provided by this Part." All the provisions in the Act must be read with these words in mind. The concepts of fairness, impartiality and the avoidance of unnecessary delay or expense are not new. The importance is the emphasis given to them at the start of this overhaul of arbitration--they are the lodestone for the parties and the arbitrator when deciding appropriate procedure in the arbitration. Next is a strong statement of party control, subject to public interest safeguards. Finally, a provision that the State will not frustrate the parties' arbitration agreement. On the contrary it will support it by punishing a defaulting party if that becomes necessary. The Act also contains principles for the arbitrator in section 33: "33(1) The tribunal shall-- (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and (b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense so as to provide a fair means for the resolution of the matters falling to be determined. (2) The tribunal should comply with that general duty in conducting the arbitral proceedings in its decisions on matters of procedure and evidence and the exercise of all other powers conferred on it". Moreover, the Act provides for the meat of arbitration which is - whether or not it results in a hearing, the exchange of proofs of evidence and replies by the expert witnesses. The important points are the scope and nature of the facts that can be used by the expert to form his opinion and whether these can be relied upon to persuade the arbitrator. There has been an active debate as to whether it is right that an arbitrator could be prevented from accepting evidence based on an arbitration award or expert determination. Generally, it is considered that these should be evidence, and given whatever weight the arbitrator thinks appropriate. "Proofs of evidence" is generally used to mean the opinion evidence of the experts and the facts on which they base those views such as "Expert reports." These are to be distinguished from submissions or representations, for those terms imply an argued case, not impartial and balanced but persuasive and partisan. Submissions still have a place since most reviews are not resolved by a hearing--but an expert witness must be careful to distinguish flights of oratory from neutral, accurate and objective opinion evidence. Indeed, accurate and objective expert evidence in arbitration proceedings is essential for a fair resolution of disputes. The crucial provision in the 1996 Act in this respect is, therefore, section 34 (1) which provides that the tribunal shall decide all procedural and evidential matters, subject to the right of the parties to agree any matter. Paragraph 2 sets out a list of procedural and evidential matters which includes as sub-paragraph (f): "whether to apply strict rules of evidence (or any other rules) as to the admissibility, relevance or weight of any material (oral, written or other) sought to be tendered on any matters of fact or opinion, and the time, manner and form in which such material should be exchanged and presented;" In English Exporters (London) Ltd v. Eldonwall Ltd (1973) 225 E.G. 255, which, prior to the 1996 Act, was widely quoted as prescribing the evidence to which an expert could refer, it was stated that an expert valuer in giving his opinion of rental value "should state his reasons for holding that opinion even if this involves reference to comparisons of which he only knows at second-hand, that surely going to weight rather than admissibility". In Bernard v France (22885/93) (2000) 30 E.H.R.R. 808 (ECHR), the applicant claimed that comments made by two psychiatric experts had infringed his right to a fair trial and to the presumption of innocence. In the Bernard case, the applicant had been charged with a number of counts of armed robbery. A psychiatrist originally appointed by the court had, in his report, referred to the applicant's chances of rehabilitation as being ""considerably compromised by both his criminal record and his personality". On the application of M. Bernard a second opinion was ordered. The psychiatrist in this case referred to the applicant as ""a gangster" who was ""not an occasional offender, but a real professional". By an 8 to 1 majority, the Court ruled that, in the circumstances, his right to a fair trial had not been breached. In the case of Mantovanelli v France (1997) 24 E.H.R.R. 370 (ECHR), the applicants' daughter was admitted to a hospital where she underwent an operation. The following year she underwent surgery there seven times in the form of repeat operations and skin grafts, and an arteriovascular examination all carried out under a general anaesthetic. On each occasion, a varying combination of seven different drugs was used which always included halothane. In March 1982, after having contracted jaundice, the patient fell into a hepatic coma and subsequently died on March 29, 1982. The applicants considered that their daughter's death had been caused by excessive administration of halothane and applied to the administrative courts for a ruling that the hospital was liable for her death. On March 28, 1985 the Administrative Court delivered an interlocutory judgment which, inter alia, appointed an expert to provide a report to the Court. The court-appointed expert examined various medical files and interviewed five members of the medical staff at the hospital, including the surgeon who had performed the last operation on the applicants' daughter, and the anaesthetist. His report exonerating the hospital was lodged with the court and communicated to the parties in July 1985. The applicants filed a pleading alleging that neither they nor their lawyer had been informed of the dates of the steps taken by the expert and that his report referred to documents which they had not been able to inspect. As such there had been a breach of the principle of adversarial proceedings and that justified setting the expert report aside and ordering a new one. Despite those submissions and the Administrative Court finding that the expert report had been produced in an irregular manner, the Administrative Court dismissed the applicants' action. Subsequent appeals to the Administrative Court of Appeal and the Conseil d'Etat were unsuccessful. In their application to the European Court the applicants maintained that the procedure followed in preparing the expert medical opinion ordered by the Nancy Administrative Court had not been in conformity with the adversarial principle and had given rise to a violation of their right to a fair hearing under Article 6(1), in that contrary to the provisions of domestic law neither they nor their counsel had been informed of the dates of the interviews conducted by the expert. The expert also referred in his report to documents which they had not seen and which it had been pointless to ask the hospital management to provide. The Court held that there had been a breach of Article 6(1) (by 5 votes to 4). There is no general abstract principle that could be inferred that where an expert had been appointed by a court, the parties must in all instances be able to attend the interviews held by him or be shown the documents he had taken into account. However, in the applicants' case, the question the expert was instructed to answer was identical to the one that the court had to determine. It pertained to a technical field that was not within the judges' knowledge. Therefore, although the Administrative Court was not in law bound by the expert's findings, his report was likely to have a preponderant influence on the assessment of the facts by that court. Under such circumstances the applicants could only have expressed their views effectively before the expert report was lodged. As illustrated in the Bernard and Mantovanelli cases decided by the European court on human rights, the provision of accurate and objective expert evidence is essential for a fair resolution of disputes under Article 6 ECHR. Undoubtedly, the same kind of evidence is necessary in arbitration proceedings, otherwise, such arbitration proceedings fall short of the requirements of Article 6 ECHR and the CPR. References: Primary Sources Arbitration Act 1996 Arbitration Act 1996, Section 1 Arbitration Act 1996, Section 33 (1) Arbitration Act 1996, Section 33 (2) Arbitration Act 1996, Section 34 (1) Arbitration Act 1996, Section 34 (2) Bernard v France (22885/93) (2000) 30 E.H.R.R. 808 (ECHR) Civil Procedure Rules, Part 35.3 Civil Procedure Rules, Part 35.4 English Exporters (London) Ltd v. Eldonwall Ltd (1973) 225 E.G. 255 European Convention on Human Rights, Article 6 Mantovanelli v France (1997) 24 E.H.R.R. 370 (ECHR) Secondary Sources 1997 Supplementary Report on the Arbitration Act 1996. Arbitration Int. 1997, 13(3), 317-328 Arbitration Act 1996 (Commencement No.1) Order 1996. Arbitration Int. 1997, 13(3), 329-330 Blackaby, N. The English court's assistance to overseas arbitration - muddy waters in the Arbitration Act 1996. Arbitration Int. 1997, 13(4), 431-433 Harris, B. Report on the Arbitration Act 1996. Arbitration Int. 2007, 23(3), 437-460 Karali, M. Procedure and evidence under the Arbitration Act 1996. P & I Int. 1998, 12(4), 90-91 Karali, M. Procedure and evidence under the Arbitration Act 1996. P & I Int. 1999, 13(3), 60-62 Littman, M. The Arbitration Act 1996: the parties' right to agree procedure. Arbitration Int. 1997, 13(3), 269-271 Maxwell, K. English Arbitration Act 1996: will anything change in practice Arbitration Int. 1997, 13(4), 435-437 Roth, M. Consequences and prevention of false evidence under the English Arbitration Act 1996: a comparative perspective. Arbitration Int. 1997, 13(4), 391-397 Saville, M. The origin of the new English Arbitration Act 1996: reconciling speed with justice in the decision-making process. Arbitration Int. 1997, 13(3), 237-251 Separability and illegality in arbitration: interaction between sections 7, 9 and 72 of the Arbitration Act 1996. Arb. L.M. 2007, Apr, 1-7 Stothard, P. The right to a fair trial and the Arbitration Act 1996: apparent conflicts leave the English courts unmoved. Bus. L.R. 2008, 29(1), 2-6 Read More