Principle of the Right to Be Heard in Civil Procedure: Eli/Unidroit Model European Rules of Civil Procedure, Case Law of the Ecthr and National Context

Abstract

The article addresses the right to be heard as one of the new principles of civil procedure being analyzed through the prism of the provisions of the ELI/UNIDROIT Model European Rules of Civil Procedure and para. 1 of art. 6 of the European Convention on Human Rights and Fundamental Freedoms and the practice of the European Court of Human Rights. The paper highlights the problems of implementation of this principle at the national level. Within the framework of the ELI/UNIDROIT Model European Rules of Civil Procedure, the principle of the right to be heard includes: a) a fair opportunity to present claim and defense in court (Rule 11); b) the reasoned judgments, relied on the basis of the case file and the legal issues which the parties were able to comment on (Rule 12); c) the prohibition on the court communicating with a party in the absence of other party (Rule 13). Based on the analysis of the ELI / UNIDROIT Model European Rules of Civil Procedure and the case law of the ECtHR, the author advocates the view, according to which, the implementation of the principle of the right to be heard calls for the existence of a number of procedural guarantees of 'fair hearing' (para. 1 art. 6 of the ECHR). It is concluded that in modern conditions the principle of the right to be heard in its legal content is reduced to the requirement to provide a party to the proceedings the opportunity to bring to court their claims and objections, to effectively present their legal position before the court on equal terms with those given to the other party, as well as to obtain a reasoned court judgment. The implementation of this principle is associated with three groups of guarantees: a) guarantees that are prerequisites for the exercise of the right to be heard (proper notification of the person about the date, time and place of the court hearing); b) guarantees that constitute the core of the right to be heard and are implemented during the trial (oral hearing; opportunity to participate in the proceedings; the principle of 'equality of arms' and adversarial process); c) guarantees that are implemented after consideration of the case (a reasoned court judgment).