Admissibility of evidence

Today a brief analysis of the right to present evidence in court proceedings under Article 6 ECHR, from a recent article by Léon Dijkman.

“34. When it comes to evidence, the ECtHR has held that Art. 6 ECHR does not, as such, explicitly guarantee the right to have specific evidence admitted by a court.⁹⁵ However, any restriction on a party’s ability to produce evidence must be consistent with the requirements of a fair trial.⁹⁶ Key elements to take into account when assessing the consistency of such restrictions with the requirements of a fair trial is the relevance and importance of the refused evidence to the outcome of the proceedings at hand. Evidence that is not relevant to the proceedings or, if admitted, would be unlikely to influence their outcome may normally be refused without violating Art. 6 ECHR.⁹⁷ On the other hand, if the evidence is essential for a party to successfully defend their position, a refusal to allow it might be contrary to Art. 6 ECHR.⁹⁸ Thus, the more important the evidence is for a party’s case, the more stringent will be the requirements for nonetheless refusing it in the proceedings.”

Footnotes

95 See, eg, ECtHR, 12 June 2012, App No 19673/03 Gryaznov v Russia [57].

96 ibid. In Gryaznov, the ECtHR found a violation of art 6 ECHR because the national court refused to admit testimony from the ‘only witness capable of supporting the applicant’s allegations’, which ‘inevitably led to the finding that his claims were unsubstantiated’ (at [60]). Conversely, in ECtHR, 23 October 1996, App No 17748/91 Ankerl v Switzerland [38], no violation was found because the ECtHR did not see how the evidence ‘could have influenced the outcome of the proceedings’.

97 Settem [Ola Johan Settem, Applications of the ‘Fair Hearing’ Norm in ECHR Article 6(1) to Civil Proceedings (Springer 2016)] 341.

98 See, eg, ECtHR, 15 March 2016, App No 39966/09 Gillissen v Netherlands [51, 56] (applicant’s case ‘hinged on the factual allegation that an agreement ... had been reached between him and Mr. G.’ so the refusal by the Central Appeal Tribunal to hear Mr. G. constituted a violation of art 6 ECHR); ECtHR, 10 October 2013, App No 15853/08 Voloshyin v Ukraine [35] (by ignoring points ‘pertinent for the proper consideration of the case’, courts fell short of their obligations under art 6 ECHR); ECtHR, 5 February 2009, App No 22330/05 Olujic v Croatia [81, 85] (refusal for applicant to hear witnesses that ‘were relevant to his case and likely to contribute to the aims of his defence’ considered ‘incompatible with the guarantees of a fair trial enshrined in Article 6’); ECtHR, 1 December 2005, App No 33914/02 Skorobogatova v Russia [53] (no violation of art 6 ECHR where ‘the applicant was able to introduce all necessary arguments in defence of her interests’).

Léon Dijkman,  Does the Injunction Gap Violate Implementers’ Fair Trial Rights Under the ECHR?, GRUR International, 70(3), 2021, 215–227, doi: 10.1093/grurint/ikaa177