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Increasing Openness of Court Proceedings?*

Comparative Study on Public Access to Court Documents of the European Courts

Doctor of Laws, Post-doctoral researcher at University of Helsinki; Senior Lecturer in Constitutional Law at the Law School of University of Eastern Finland.

This article concentrates on the openness of court proceedings, in particular on public access to court documents at the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR). The current presumption by the ECJ is that third-party access to the ECJ’s submissions may undermine the sound administration of justice and the equality of arms principle, whereas in the ECHR system, court documents including parties’ submissions are made public as a rule, both in pending and closed cases. Accordingly, it seems that the two sibling European courts have adopted fully opposing approaches to the third-party right of access to court files. There are serious arguments for the ECJ to change its current approach, as the public’s right of access to court documents increases the justification of court cases: it strengthens the justificatory force of court judgments, and finally the legitimacy and accountability of the court itself, since it reveals more arguments based on which judges deliberate, but which are absent from the final judgment. In addition, there are some practical deficiencies in the ECtHR proceedings relating to third-party access to court documents that make the promise of transparent court hard to fulfil.

Keywords: Judicial transparency, openness of court proceedings, a third-party right of access to court files, the closed material proceedings, the European Court of Justice, the European Court of Human Rights

* I am grateful to Prof. Päivi Leino-Sandberg and Prof. Jaakko Husa for their valuable comments. I also thank two anonymous referees for the important comments they gave. Finally, I thank Ms Atreyi Bhattacharjee and Mr. Adam King for editing the language.

1. Introduction – Two Opposite Approaches to Openness of Court Proceedings

Publicity of court proceedings is a key element in any modern democratic society that contributes to the achievement of the free and fair trial.1 Publicity ensures that a trial respects certain material standards relating to the procedure and the evidence on which the case is based.2 This is regarded as particularly important in criminal cases, where the accused is traditionally viewed as possessing the right to a public trial.3 Public court proceedings are also one of the means whereby confidence in the courts can be maintained. In addition, publicity is also linked to the transparency of courts’ judicial activities. Consequently, public access to court documents is an essential element of judicial transparency that promotes the fairness of court proceedings.4 The connection between fair trial and transparency of the court also works the other way round: the procedural rights not only ensure that the right to a fair trial is fulfilled; they also contribute towards transparency.5

This article addresses the openness of court proceedings from two perspectives. The focus, on the one hand, is on the openness of the two European courts at their own judicial proceedings and, on the other, on the kind of openness they require from others. Importantly, the key element of the openness of court proceedings is based on how public access to court documents is provided. The current presumption by the ECJ is that third-party access to the ECJ’s submissions may undermine the sound administration of justice and the equality of arms principle,6 whereas in the ECHR system, court documents including parties’ submissions are made public as a rule, both in pending and closed cases.7 Accordingly, it seems that the two sibling European courts have adopted fully opposing approaches to the third-party right of access to their court files.

The ECJ has faced harsh criticism concerning its judgments, which have been seen as politically motivated and too integration-friendly.8 By openly showing all the facts and parties’ arguments, public access to court documents could be one way to respond to this criticism. In addition, the latest studies concerning the ECJ have focused on questions whose arguments have a real influence on the ECJ’s interpretations and whose views the ECJ essentially follows.9 These questions are hard to study without public disclosure of the ECJ’s documents. Above all, the judicial legitimacy of the ECJ could also benefit from the open disclosure of its judicial documents.

One perspective of the third-party right of access to court files is connected to the fact that judicial accountability and public confidence are achieved through the courts’ legal argumentation.10 The main mechanism through which the courts account for their activity is the published reasons accompanying their rulings. Importantly, the third-party right to parties’ submissions supplements awareness of the arguments that were presented before the court, and that the court used in its deliberations. Clearly, not all the arguments expressed in the secret judicial deliberations by the judges will be part of the court’s final reasoning. Therefore, third-party access to court files may fulfil possible gaps in the court’s reasoning in the delivered judgment and consequently make the case more understandable and justified.11 In addition, the fact that the judges know that the public will have access to the pleadings may push them to give more profound arguments. Further, access to court records enables the public to observe how the government reacts to claims brought against it.12

The hypothesis of this article is that public access to court documents increases the justification of court cases: it strengthens the justificatory force of court judgments, and finally the legitimacy and accountability of the court itself, since it reveals more arguments on the basis of which judges deliberate, but that are absent from the final judgment. From the legal theory point of view, the argument is that public’s right of access to court documents should be effective and dynamic for the sake of proper legal justification. Above all, public access to court documents is at the core of judicial transparency, which is connected to fundamental questions concerning the legitimacy and accountability of the judiciary, as well as to the confidence of the public with regards to the courts.13

There are also practical reasons for public access to court files: legal practitioners are interested to know what kind of arguments were relied upon by the parties, and consequently, which arguments succeeded in the court proceedings, and which were ignored by the court. This is important information when preparing for a court case where the legal questions and/or facts are more or less the same compared to the given judgment. In addition, the media, academics, businesses and individuals have an interest in knowing the backgrounds of the judgments more profoundly.

There are, of course, arguments in favour of secrecy. For instance, third-party access to submissions may undermine the sound administration of justice, and the equality of arms principle. Regarding the former, it is argued that secrecy is justified in light of the need to ensure an atmosphere of total serenity throughout the proceedings, the exchange of arguments by the parties, and the deliberations of the court.14 As for the equality of arms principle, the chain of reasoning is as follows: if the content of the submissions were to be open to public debate, the danger is that public criticism levelled against the parties may influence their position before the EU courts.15 In addition, the requirement to disclose documents according to Regulation 1049/2001 only concerns the EU institutions. This would upset the vital balance between the parties to a dispute before the court, since only the institution concerned, and not all the parties to the proceedings, would be bound by the obligation of disclosure.16 These counter-arguments must be given serious consideration: judicial decision-making requires a certain degree of secrecy. However, the public access to court documents will not undermine the sound administration of justice when the proceedings are closed. Likewise, under closed proceedings, it will not undermine the equality of arms principle if public access concerns all submissions by all parties.

The structure of the article is as follows: firstly, a brief background to the publicity of court proceedings is provided. Secondly, public access to court documents at the EU level, and in particular in the ECJ’s judgments, will be described and analysed. Thirdly, public access to court files in the ECHR system is similarly described and analysed, paying particular attention to the current ECtHR’s jurisprudence. The recent significant question before the European courts relating to openness regards the use of closed material in court proceedings. In closed material proceedings’ cases, the ECtHR has, rather surprisingly, taken a few steps backwards in its transparency jurisprudence, whereas the ECJ has strictly demanded the minimum threshold of the right to a fair trial to be protected. Lastly, final conclusions are drawn.

2. Background to the publicity of court proceedings

Several international human rights treaties establish that court proceedings must be public.17 For example, Art. 6(1) of the ECHR rules that “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing”.18 Furthermore, Art. 14(1) of the International Covenant on Civil and Political Rights states that “in the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing”.19 In addition, Art. 47(2) of the Charter of Fundamental Rights of the European Union (the Charter) states that “everyone is entitled to a fair and public hearing”.20

The question remains whether a public hearing is a right of its own or whether it only contributes to the fairness of the court proceedings.21 In addition, the term ‘public hearing’ has been interpreted as a synonym for an oral hearing by the ECtHR and the ECJ.22 The ECtHR generally emphasises the publicity’s significance for the fairness of proceedings rather than viewing the ‘public hearing’ right as a separate right resting on its own foundation.23 This has been criticised since it is possible to question the factual assumption that publicity really has this effect.24 By contrast, the UN Human Rights Committee has considered ‘public hearing’ both as a safeguard for the parties to a dispute, and as being in the interest of the democratic polity at large.25 At the EU level, there is not much case law relating to the public character of the hearing.26

One must be aware that publicity of court proceedings contains several different elements, such as oral hearings, publicity of judicial deliberations by judges (this is done in secrecy in most of legal orders27), public pronouncement of judgments, and finally, publication of judgments as well as the duty to give reasons.28 In addition, there is a clear distinction in relation to the access of court documents between the parties of the proceedings and the general public. This article understands the publicity requirement as broadly containing all these elements. In other words, the aforementioned elements are all part of the normative concept of “publicity”, construed for the purposes of making a lex ferenda evaluation of the law as it exists both at the EU level and in the context of the ECHR. However, the very essence of a truly open court is measured by the way in which public access to court documents has been made possible. In other words, public access to court documents is the main way to concretise the publicity of court proceedings. Next, we will examine how/what the two European courts consider the fulfilment of the publicity of court proceedings both at their own proceedings, and what they expect from others.

3. Openness of court proceedings at the European Court of Justice

Publicity of court proceedings in the ECJ system is chiefly enforced through the publishing of a notice of the cases that have been brought before the ECJ in the Official Journal,29 as well as by opening oral hearings to the public.30 In addition, judgments are pronounced publicly31 as well as being published.32 However, oral hearings before the ECJ are neither filmed nor recorded, which essentially means that the public can only follow oral hearings in situ in Luxembourg. Furthermore, regrettably, oral hearings are no longer held as a rule due to the amendments made in the ECJ Rules of Procedure.33

Openness by the main EU institutions, namely the European Parliament, the Council and the Commission, has been in focus both in the regulatory sense and in legal research.34 Generally, at the EU treaty level transparency is lauded as an overarching principle. However, at a practical level, statutory exceptions are treated as creating ‘general presumptions’ justifying the refusal to adhere to the principle of openness.35 Importantly, in EU transparency, legal research questions relating to the openness of the ECJ have remained a lesser priority.36

Art. 15 TFEU promotes openness in the EU institutions by creating the right of access to documents of EU institutions. However, the fourth paragraph of Art. 15(3) TFEU underlines that the Court of Justice of the European Union is subject to the right of access to documents only when exercising its administrative tasks. In practice, this means that there is no procedure where judicial documents of the ECJ could be requested.37 Further, the secondary legislation that concretises the right of access to documents of EU institutions concerns only the European Parliament, the Commission, and the Council (Regulation 1049/2001).38 In addition, the protection of court proceedings has been stated as one of the exceptions refusing the access to documents unless an overriding public interest exists for a disclosure (Art. 4(2) of Regulation 1049/2001). In sum, there is no procedure available in the ECJ for the public to request court documents. However, when the court documents are in the possession of the other EU institutions or the Member States (as they normally are), the documents may be disclosed under certain conditions.

At the EU level there have been several regulatory amendments that have reduced the openness of court proceedings, for example, by discontinuing the ECJ’s practice of publishing a report of the hearing,39 limiting oral hearings as an exception to the main rule,40 as well as by introducing the closed evidence procedure in the General Court’s proceedings.41 Above all, the ECJ has seen the public disclosure of court documents as being contrary to the sound administration of justice and equality of arms principle even after the hearing has taken place.42 It is also perfectly clear that neither the Statute of the Court of Justice nor the ECJ Rules of Procedure provide for any third-party right of access to pleadings submitted to the ECJ.43 The ultimate reason has been to protect the serenity of court proceedings; this, however, is no longer a valid argument once the case is closed. A counter-argument could be that actors will already anticipate publicity during deliberations and adapt their behaviour accordingly, thereby jeopardising the sound administration of justice. However, I would stress that judges should be able to bear a certain amount of public pressure, which is an inherent part of being a judicial decision-maker.

Even though transparency regulations are not applicable to the ECJ in its judicial activities and the ECJ’s approach to transparency in court proceedings has been rather conservative, there have been some glimpses of change in the ECJ’s practice. It not only emphasises the secrecy of court proceedings, but also its transparency, particularly when the case is closed in the court.44 Further, the ECJ has recognised that the parties are free to disclose their own pleadings on their own motion.45

3.1 Indirect public access to court documents when the proceeding are closed

In case law, the question concerning public access to court documents at the EU level has related either to access to the Commission’s pleadings46 or written submissions relating to ECJ court proceedings made by Member States, which are in the Commission’s possession.47 In addition, many pleadings to the ECJ are submitted by other actors, such as private persons and companies. Direct access requests concerning court documents to the ECJ are not possible since, as described above, the ECJ is excluded from the scope of application of the transparency regulations.48

The ECJ has accepted the general presumption that a disclosure of the written submissions lodged by an institution or a Member State in court proceedings would undermine the protection of court proceedings within the meaning of the second indent of Art. 4(2) of Regulation 1049/2001 as long as those proceedings remain pending.49 Consequently, the ECJ has made a clear distinction between public access to court documents when the proceedings are pending and when the proceedings are closed.

Regarding closed court proceedings, the ECJ stated: “[When the judicial proceedings are closed] there are no longer grounds for presuming that disclosure of the pleadings would undermine the judicial activities of the Court since those activities come to an end with the closure of the proceedings.”50 However, the ECJ left the door open for restricting public access to documents in connection to other pending proceedings, when the case itself has closed. In other words, the disclosure of documents relating to closed court proceedings could undermine similar court proceedings which are still pending. The ECJ stresses that the EU institution must conduct a specific examination of the requested documents in order to establish whether the disclosure of the documents relating to closed court proceedings can be refused. Further, the ECJ stressed that a mere link between the two set of court proceedings is not enough.51

Interestingly, the General Court tried to draw the line concerning public access to court files before and after the hearing stage of the court proceedings. According to the General Court, when the pleadings for which access has been requested relate to court proceedings that have not reached the hearing stage, the refusal to disclose those pleadings is justified on the grounds of protection of court proceedings. By contrast, after the hearing has been held, a concrete assessment of each document requested must be made in order to ascertain whether it may be disclosed or whether its disclosure would undermine the court proceedings to which it relates.52 However, the ECJ rejected the General Court’s broader interpretation of public access to court files when an oral hearing has taken place. The ECJ emphasised that sound administration of justice, which is an important aspect of the protection of court proceedings, must be upheld irrespective of the various procedural stages.53

When an access request is made concerning documents of a pending court proceedings, the general presumption is non-disclosure and no detailed assessment is required concerning the requested documents.54 Researchers have argued that these general presumptions concerning the non-disclosure of documents have triggered the whole purpose that the transparency legislation aims to achieve.55

In Breyer, the ECJ’s argumentation was rather straightforward while determining that the judicial documents in the Commission’s possession fell within the scope of the Regulation 1049/2001: the ECJ emphasised that the right of access to documents extends not only to documents drawn up by those institutions listed in the Regulation themselves, but also to documents they have received from third parties, including Member States.56 An important detail in the case was that the Commission initially received the documents from the ECJ, and not from the Member State concerned. This had, however, no effect on the ECJ’s interpretation of whether Regulation 1049/2001 applied.57 Further, the ECJ shows that it is fully aware of the EU legislator's intentions for not having provided a right of access to court documents by third parties. However, the ECJ stated that: “[the fact that the EU legislator does not provide any public access to court documents] cannot […] have the consequence that the regulation does not apply to applications for access to written submissions that have been drawn up by a Member State for the purpose of court proceedings before the EU judicature […].”58 Consequently, the ECJ concluded that the written submissions drawn up by a Member State for ECJ court proceedings that are in the Commission’s possession are ‘documents held by an institution’ within the meaning of Art. 2(3) of the Regulation 1049/2001 and therefore fall within the scope of the regulation.59

The Commission made arguments based on the fourth subparagraph of Art. 15(3) TFEU that essentially state that the EU judicatory is subject to access to documents provisions only when exercising their administrative tasks. The Commission argued that this treaty provision is basically a limitation on the right of access to documents in judicial activities of the ECJ. The ECJ rejected these arguments and stated the opposite: “[such treaty provision] does not preclude the application of that system to an institution to which the provisions of Art. 15(3) TFEU and Regulation No 1049/2001 are fully applicable, such as the Commission, where that institution holds documents drawn up by a Member State […] relating to court proceedings.”60

The ECJ took the EU’s objective of an open European administration seriously and interpreted access to documents as stemming from the wording of Regulation 1049/2001. Consequently, the ECJ explicitly declined a narrow interpretation of the scope of Regulation 1049/2001, and ended up further supporting an indirect right of access to court documents by third parties. This means that the public has the right to documents submitted to the ECJ in court proceedings not directly from the ECJ itself, but when the submitted court document is in the possession of any of the institutions listed in Regulation 1049/2001 (namely, the Commission, the Council and the Parliament), the institution concerned must, in principle, release that court document.

3.2 The freedom of the parties to disclose their own pleadings

There are no EU rules or provisions that authorise or prevent parties to proceedings from disclosing their own written submissions to third parties. The ECJ had stated in 2000 that parties are free to disclose their written submissions even when the case is pending.61 The General Court (formerly the Court of First Instance) has followed that interpretation and confirmed that parties are free to disclose their own written submissions. In exceptional cases such disclosure can be denied if it adversely affects the proper administration of justice. The General Court has, however, interpreted that the disclosure of written submissions concerning pending cases does not necessarily undermine the principle of the proper administration of justice.62

The principle that parties are free to disclose their submission to the public when the case is still pending, however, is completely vague. The ECJ has not clearly stated what those exceptional circumstances when such disclosure adversely affects the proper administration of justice may be. Several questions remain unanswered: who makes the assessment of whether or not the parties’ disclosure adversely affects the proper administration of justice? The parties themselves? What factors must be considered? AG Maduro suggested that the ECJ should reconsider the order of 2000 and declare parties’ submissions during pending proceedings outside the ambit of the transparency regulations, and establish itself as the sole possible access point for pleadings during pending procedures.63 The ECJ, however, did not address the question of the parties’ right to publish their pleadings. Consequently, formally, the publication by the parties of their own pleadings is possible.

Notably, researchers have argued that the rule that the parties are free to disclose their written submissions could be transferred into an obligation for EU institutions to disclose their written submissions in cases before the ECJ, given the principle of free access to EU documents provided in Regulation 1049/2001.64

4. Openness of court proceedings at the European Court of Human Rights

4.1 How open are ECtHR’s proceedings?

In the ECHR system the publicity requirement is realised through, above all, public hearings provided by Art. 40(1) ECHR, which are filmed, and recordings are available on the ECtHR’s website.65 The filming and recording of court hearings is a very concrete way to ensure public participation.66 Consequently, it increases the legitimacy of the ECtHR by bringing supranational proceedings closer to the public.67 In addition, the openness of ECtHR’s court proceedings is fulfilled through the public disclosure of court documents provided by Art. 40(2) ECHR. Self-evidently, the judgments are pronounced in public68 in addition to being published.69

In the ECHR system, the public disclosure of court documents has been regulated in a fully opposite manner when compared to the ECJ. Historically, the turning point towards greater openness of ECtHR’s proceedings was introduced when the control machinery system was fully amended through Protocol No. 11.70 Protocol No. 11 introduced a new provision (Art. 40 ECHR) to the text of the ECHR that essentially provides that ECtHR proceedings are to be conducted in public. In addition, the new provision also specified that documents submitted in ECtHR proceedings are also, in principle, accessible to the public. Importantly, Art. 40 ECHR was modelled on the former Rules of Court.71 Concretely, for example, before the entry into force of Protocol No. 11 the admissibility hearings were secret; they subsequently became public.72

The new provision establishing that third parties have a right of access to court documents even in pending ECtHR cases did not provoke any serious debate or criticism within the Contracting States. It seems that the reform of the whole machinery, including the compulsory individual petition system, which established the full-time single court system73 as well as the binding nature of the ECtHR’s judgments, stole the states’ full attention, and arguably a rather liberal provision providing public access to court documents did not garner any serious scrutiny.74 However, some concern was given to the question of whether the Registry has enough resources to deal with requests for an immediate sight of case files.75 Unfortunately, this concern has been realised since the procedure of the access request is considerably long, often taking several months before the applicant hears whether the request has been accepted or not.76

Art. 40(2) ECHR states that public disclosure of court documents is also the main rule when the case is pending. Rule 33(1) of the Rules of Procedure of the ECtHR states that all documents deposited with the Registry by the parties or by any third party in connection with an application shall be accessible to the public, unless the President of the Chamber decides otherwise. Rule 33(2) states that public access to a document or to any part of it may be restricted in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties or of any person concerned so require, or to the extent strictly necessary in the opinion of the President of the Chamber under special circumstances where publicity would prejudice the interests of justice.

The ECtHR has arguably committed itself to an exceptionally broad form of judicial transparency: public access to court documents is also a rule in pending cases, as well as filming and recording hearings of the ECtHR. Concretely, public access to court documents works by completing the online form found on the ECtHR’s website. The reason for the request must be explained as well as the exact references of the cases one wishes to access. If the request is accepted, the documents may be consulted at the ECtHR by appointment.77 However, the ECtHR neither lays down any period within which the request shall be dealt with nor sends any acknowledgement upon receipt of application. By contrast, the procedure concerning public access to administrative documents of the ECJ sets a clear time limit (one month) within which the ECJ will respond, besides sending an acknowledgement as soon as the ECJ has received the application.78

4.2 How much openness of court proceedings is required from ECHR Contracting States?

In addition to the wide commitment to judicial transparency in its own judicial proceedings, the other interesting question is: what kind of judicial transparency does the ECtHR require from the states under ECHR provisions? The ECHR does not explicitly regulate on the right of access to documents. However, the ECtHR has interpreted the right of access to information to be part of the freedom of expression rights, and in particular, deriving it from the right to receive information as provided in Art. 10 ECHR (freedom of expression and information).79

Besides ECHR provisions, there is also an explicit treaty regulating public access to documents within the Council of Europe’s system, namely, the Convention on Access to Official Documents,80 which excludes from its scope of application the documents of judicial authorities in their judicial functions. It follows a similar distinction as in EU law – that of judicial authorities being bound by the provisions concerning access to documents insofar as they perform their administrative functions.81 However, in order to enhance openness, the Convention explicitly encourages the states to adopt a broader view by stating that each party may declare that the definition of ‘public authority’ also includes judicial authorities as regards all their activities.82 When such a clear suggestion is made by the international treaty, it may indicate that the European trend is towards more openness of court proceedings. Consequently, this (although admittedly vague) trend could be utilised by the courts as a source of inspiration when deliberating cases relating to third-party access to court documents.

Public interest has been the core question whenever the ECtHR has determined the scope of the expression rights derived from Art. 10 ECHR. In access to information cases, the ECtHR has focused on whether the measures taken by the national authority are capable of discouraging the participation of the press in the public debate on matters of legitimate public concern.83 Importantly, the ECtHR has used the public interest argumentation when broadening the scope of Art. 10 ECHR. For example, the ECtHR has given weight to the fact that the public interest behind the information request in question was ‘considerable’ and consequently pointed to rather far-reaching positive obligations on states to fulfil the access rights.84 Significantly, in a case relating to the public disclosure of information concerning pending criminal proceedings, the ECtHR stated that the functioning of the judiciary is “a matter of public interest [...] which the public has a right to know about”.85

Importantly, in the ECtHR’s jurisprudence there are only few cases which either implicitly or explicitly concern public access to court documents.86 The case law praxis is currently developing, and the ECtHR will soon decide on the core question of whether Art. 10 ECHR covers disclosure of court documents to third parties (e.g. for journalists) when the subject matter of the proceedings is of public interest.87 Interestingly, the ECtHR has not emphasised the sound administration of justice or the rights of the parties in the same way as the ECJ has done. For example, the ECtHR has recognised the proper administration of justice and the right of a person to be presumed innocent as legitimate aims when balancing the disclosure of information concerning pending court proceedings from the perspective of Art. 10 ECHR. However, the ECtHR does not stop at legitimate interests to restrict the ECHR right (the public disclosure of information relating to a pending case), but instead evaluates the necessity of the interference.88 Consequently, the ECtHR’s approach to public disclosure of court documents is arguably more profound and comprehensive when compared to the ECJ.

4.2.1 Public access to court documents: emphasis on the right to receive information of public interest

In Társaság it seems that the ECtHR rather accidentally and implicitly came to support public access to judicial documents in pending cases. The facts of the case were the following: the applicant association requested the national Constitutional Court to grant access to a complaint pending before it. The constitutional complaint concerned request of constitutional scrutiny of some recent amendments to the Criminal Code concerning certain drug-related offences.89

Surprisingly, the ECtHR paid no attention to the fact that the requested documents were directly part of pending judicial proceedings. The respondent state gave no arguments concerning, for example, the sound administration of justice or secrecy of judicial deliberations. The ECtHR paid its entire focus to the question of whether there was an infringement of the applicant’s right to receive information of public interest. This case is a revealing example of how the ECtHR focuses on the public interest behind the information request.90

The ECtHR’s perspective was that the national authorities interfered in the preparatory stage of gathering information on matters of public importance by creating an administrative obstacle. The ECtHR found that the Constitutional Court’s monopoly on information thus amounted to a form of censorship. The viewpoint is revealing when the ECtHR stated that: “[…] given that the applicant’s intention was to impart to the public the information gathered from the constitutional complaint in question, and thereby to contribute to the public debate concerning legislation on drug-related offences, its right to impart information was clearly impaired.”91 The crucial reason for militating in favour of broad access rights was probably that the judicial proceedings in question concerned a constitutionality review of some recent legislative amendments and not, for example, criminal proceedings, which is a much more sensitive procedure for the parties. In any case, the ECtHR should have had recognised that, in practice, it ended up supporting public access to documents of pending court proceedings without any considerations on the questions of the sound administration of justice or the equality of arms principle. Public interest argumentation prevailed over other competing arguments.

4.2.2 Stretching the limits of Article 10 ECHR: Is public access to court documents covered?

After the Grand Chamber finally and explicitly recognised the right of access to information as existing under Art. 10 ECHR,92 also taking into account the wide case law praxis concerning the effective protection of access rights,93 it was very likely that the question of whether Art. 10 ECHR also covers public access to documents from judicial proceedings will come before the ECtHR. As a consequence, this particular question is now pending before the ECtHR. The case concerns the access to relevant criminal case materials stored in a domestic court’s archives. The criminal proceedings have closed in the domestic court and now the question is whether the relevant documents are accessible to the public. The applicants complained under Art. 10 ECHR about the inability to gain access to the materials in the criminal case, information that was indispensable for conducting their journalistic investigation. The ECtHR communicated the core question to the respondent state: can Art. 10 ECHR guarantee the applicants a right of access to information held by the domestic courts?94

If we examine the facts of this pending Studio Monitor and Zuriashvili case against the criteria set out in ECtHR’s established case law on public access to documents, we will find some interesting points to be made. The well-established criteria will determine both the scope of application of the right of public access to documents and the breadth of the right in a particular case.95 These criteria are: i) the purpose of the information request; ii) the nature of the information sought; iii) the role of the applicant, and iv) ready and available information.96

The first criterion (“the purpose of the information request”) emphasises whether the gathering of the information is a relevant preparatory step in journalistic or other activities creating a forum for public debate. In order for Art. 10 ECHR to come into play, it must be ascertained whether the information sought was in fact necessary for the exercise of freedom of expression. According to the ECtHR, obtaining access to information would be considered necessary if withholding it would hinder or impair the individual’s exercise of his right to freedom of expression.97 In Studio Monitor and Zuriashvili, the applicants were conducting a journalistic investigation into the phenomenon of a “professional victim” in criminal cases. Notably, it came to the public attention that a small group of the same individuals would consistently appear as victims, giving incriminating statements against the accused, in several unrelated criminal cases. These “professional victims” abetted the police by fabricating criminal charges. Consequently, the purpose of the information request was clearly a preparatory step in journalistic activities to create a forum for public debate concerning the phenomenon of “professional victims”.98

The second criterion (“the nature of the information sought”) basically means that the information requested must be in the public interest. The ECtHR emphasises, first, that the public interest relates to matters which “affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, especially in that they affect the well-being of citizens or the life of the community”99. Secondly, public interest is involved in matters which “are capable of giving rise to considerable controversy, which concern an important social issue, or which involve a problem that the public would have an interest in being informed about”.100 In sum, public interest is defined rather broadly by the ECtHR. In Studio Monitor and Zuriashvili, the nature of the information undoubtedly concerns a matter of public interest. The phenomenon concerning the “professional victims” who fabricate criminal charges is clearly a considerable social problem that the public would have an interest in being informed about.

The third criterion (“the role of the applicant”) gives weight to the question: who is seeking the information? The ECtHR has given particular weight to the applicant’s role as a journalist101 or a social watchdog NGO whose activities relate to matters of public interest.102 The ECtHR goes on to conclude that the role of a public watchdog is not only left to the press and NGOs. Academic researchers, authors of literature on matters of public concern, bloggers, and even popular users of social media may be subsumed within this category of “public watchdogs”.103 Consequently, the scope of application of the role of the applicant is quite broad. In Studio Monitor and Zuriashvili the first applicant is an NGO that was established with the aim of protecting human rights and democracy by conducting journalistic investigations. The second applicant is a journalist and one of the founding members of the above-mentioned NGO. Consequently, the applicants clearly fulfil the conditions relating to the role of the applicants.

The fourth criterion (“ready and available information”) requires that the requested information must be ready and available, meaning that the public authorities do not have duties to collect any data. The ECtHR has explicitly ruled that Art. 10 ECHR does not impose an obligation to collect information upon the applicant’s request, particularly when a considerable amount of work is involved.104 In Studio Monitor and Zuriashvili the applicants requested access to relevant criminal case materials stored in the domestic court’s archives. In the communicated case it is not revealed how much material the information request contains. The case materials of the criminal proceedings contain sensitive information concerning, for example, personal data of several individuals (victims, accused, and witnesses) as well as sensitive information concerning the criminal investigations. The applicants emphasised that the criminal proceedings had already been terminated, which is a decisive factor, downplaying the significance of the public disclosure of the investigative information available in the case. As regards the fact that the requested material contained personal data, the applicants suggested that the relevant parts be simply removed from the file or made illegible in the documents.105

In sum, the first three criteria will definitely be fulfilled, but the last criterion concerning the ready and available information is more controversial. At the outset, the requested material exists (in the archives), but must at least be anonymised before public disclosure. Consequently, anonymising the requested court documents could mean, depending how much material it contains, considerable amounts of work for the state authorities, and on that basis access may not be protected under Art. 10 ECHR.106 Here the ECtHR’s jurisprudence is somewhat inconsistent, since it has also ruled quite the opposite and stated that states have an obligation to take copies and anonymise the requested material even if it would in practice mean a lot of work.107

In general, the essential question relating to public access to judicial documents is finding a proper balance between the third-party access to court documents of public interest (protected under Art. 10 ECHR) and the protection of personal data of the parties (protected under Art. 8 ECHR), besides the protection of criminal investigations and proper administration of justice when the closed case is connected with similar cases that are now pending or in the investigative stage.

5. Analysis of the two opposing approaches

When comparing the approaches by the two European courts towards public access to court documents, we can make several findings. Firstly, there is a huge difference between the ECJ and the ECtHR in terms of how they provide the public with access to their documents. In the ECHR, the openness of court proceedings was strengthened enormously when the full-standing court was established in 1998 through Protocol No. 11, by the introduction of explicit access rights for the public to the court documents,108 whereas the ECJ has upheld a rather conservative attitude towards public access to its documents by emphasising the sound administration of justice and equality of arms principle instead. As is generally known, the conservative attitude by the ECJ originates to a large extent from the French legal tradition upon which the EU-level judiciary system is in many ways based (such as no dissenting opinions by judges, system of advocate generals, minimalist style of judicial reasoning).109

Secondly, when evaluating how much publicity the two European courts require from others it is quite interesting to note which arguments the courts have relied upon regarding the interpretation of public access to court documents. At the outset, the ECJ has been in favour of non-disclosure and the secrecy of court documents to protect the sound administration of justice and the equality of arms. However, it has recently stressed that other EU institutions listed in the Regulation 1049/2001 must, in principle, disclose requested court documents that are in their possession when proceedings are closed if they do not undermine any pending similar court proceedings. By contrast, the ECtHR has connected public access to court documents to the right to receive information (Art. 10 ECHR). In addition, it has emphasised the public character of court proceedings relating to fair trial (Art. 6 ECHR).110 In this sense, the ECtHR has emphasised that reporting and commenting on court proceedings contributes to their publicity and is thus perfectly consonant with the requirement under Art. 6 ECHR.111 Consequently, the ECtHR’s pragmatic approach succeeds in evaluating the question of public access to court documents from the rights-centred point of view, whereas the ECJ’s evaluation stops at formal institutional boundaries and structures. Further, the ECJ primarily sees the negative effects that public access to court documents creates while ignoring the advantages. Above all, the ECJ demands openness from other EU institutions but restricts itself from disclosing any judicial documents.

In order to fully understand the ECJ’s approach to openness of its judicial proceedings we must remember its primary function, which is to ensure that EU law is interpreted similarly in all Member States (Art. 19 TEU). Only in certain circumstances may an individual bring an action before the ECJ. In other words, the primary function of the ECJ is to ensure the unity of EU law, not a legal protection for individuals. Therefore, there is no real need to open the ECJ’s judicial proceedings since public disclosure of judicial proceedings would encourage Member States to build parallel interpretations on EU law questions. The ECJ has persistently highlighted the primacy, unity and effectiveness of EU law over national (even constitutional) provisions.112 In sum, the openness would be legitimate in ensuring legal protection for individuals, but at the same time would jeopardise the primary function and the authority of the ECJ.113 However, the fear of a more fragmented EU law may only partly explain the ECJ’s negative attitude towards public access to its court documents, since up until 1994 all submissions were summarised and published in the European Court Reports.114 In addition, surely a much more important competitor against the ECJ’s line of interpretation are those expressed in the Advocate General’s opinions, and not those given in the parties’ submissions.

In addition, one must recall that the legal tradition of human rights questions is wholly different in these two systems. Where the ECtHR has a long and exclusive tradition focusing on human rights questions, the ECJ has a relatively short one. In addition, the two courts operate in different contexts. For example, regarding the ECtHR, one could argue that there is no general need or reason for the confidentiality of parties’ submissions because most of the details of a case have become public during the preceding domestic proceedings anyway (domestic proceedings that are closed must meet the publicity standard of Art. 6(1) ECHR).115 Whereas, in the preliminary ruling procedure before the ECJ, national proceedings have been suspended during the procedure and thus the details of pending cases are not necessarily public at the national level.116 Furthermore, the ECJ has emphasised that such disclosure would expose judicial activities to external pressure and therefore disturb the serenity of the proceedings.117 Consequently, the non-disclosure of court documents while the case is still pending in EU courts is justified: the EU has a broader set of policies close to the core of state sovereignty, and with stronger economic and political interests compared to the Council of Europe.

The positive sign in the ECJ’s public access to court documents jurisprudence is the acceptance of public access to court documents through the other EU institutions when the court documents are in their possession and the case is closed. This is not, however, sufficient since it is rather curious that the public may have access to ECJ judicial documents only when those documents are in the possession of institutions listed in Regulation 1049/2001.118 In addition, the other EU institutions do not have the first-hand knowledge of all the points that should be balanced when deciding whether the documents relating to court proceedings should be disclosed or not. This cannot be desirable in the EU legal order, which is so strongly committed to the widest possible degree of openness and principle of good administration in its activities. Therefore, I argue that access requests concerning ECJ judicial documents should be made directly to the ECJ.119 This solution would be beneficial not only for the public, but also for the other EU institutions, which would be alleviated of the task of analysing disclosure requests concerning documents related to court proceedings. The ECJ has so far, however, rejected this proposition.120

6. Pushing openness aside: closed material procedure

A contrasting approach to the principle of openness of court proceedings is the use of closed material as evidence before the courts. Closed evidence proceedings essentially means that there is information or material produced by the other party before the court that will not be communicated to the other main party. Consequently, the party has no opportunity to comment on the material or pose questions relating to it. Both the European courts have had to respond to challenges relating to the use of closed evidence proceedings from the perspective of fair trials.

At the EU regulatory level, the closed material proceedings was added in the Rules of Procedure of the General Court and the new provisions came into force on 1 July 2015.121 Accordingly, the ECJ made changes in its Rules of Procedure.122 Art. 105 of the Rules of Procedure of the General Court provides a special procedure in cases where information or material would harm the security of the Union, or one or more of its Member States, or the conduct of their international relations. The General Court may, according to paragraph 8 of Art. 105, base its judgment on secret information or material that is not communicated to the other party. The closed evidence procedure introduced in the General Court has been criticised heavily from the point of view of the fair trial principle.123 It is stated that the EU closed material procedure is, in many respects, far worse than the closed material proceedings in the UK.124

There is no case law yet on the application of Art. 105 of the Rules of Procedure of General Court and time will tell how the ECJ interprets such a strong interference with the right to a fair trial provided in Art. 47 Charter and Article 6 ECHR. However, the ECJ’s approach to the use of closed evidence has been clear: full secrecy is not in conformity with fair trial principles enshrined in Art. 47 Charter.125 As a result, the ECJ has demanded that there must be a threshold of minimum disclosure to the applicant.126 Accordingly, it seems that closed material procedure regulated in the Rules of Procedure of the General Court does not match the principles developed by the ECJ’s jurisprudence.127 Hopefully the ECJ will clear the question when the interpretation of Art. 105 of the Rules of Procedure of the General Court is challenged before it.

In the ECHR system, the use of closed evidence has been challenged before the ECtHR for the last decade. The ECtHR has a well-established body of case law in which it has established specific rules on how the non-disclosure of evidence to the defence could be counter-balanced by additional procedural safeguards.128 Essentially, the ECtHR has held that the judicial decision to maintain detention cannot be based solely or to a decisive degree on closed material.129 Consequently, an individual cannot be subject to rights-restricting measures based largely or entirely on closed material. The ECtHR has pointed out that applicants must be given the sufficient “gist” of the case against them.130

Quite recently, however, the ECtHR has derogated from the sufficient “gist” requirement (or the minimum disclosure requirement) and concluded that the lack of “gisting” is not determinative.131 Arguably, the emphasis has shifted from protecting the core of Art. 6 ECHR through “gisting” towards an approach that balances national security against the interest of the applicant receiving a fair trial.132 Further, one has also suggested that the ECtHR’s current approach may indicate that it is no longer taking Art. 6 ECHR as seriously as it ought to be.133 In any case, the ECtHR’s shift in approach is inevitably a major step backwards, not only from the protection of fair trial principle point of view, but also from the perspective of the openness of court proceedings to a larger extent. Overall, the ECtHR’s attitude towards normalisation of the closed material procedure and extending the scope of its application to other areas is deeply worrying: it seems that the closed evidence procedure is no longer handled as an exception in the ECHR system.134

In sum, the ECJ’s approach has placed more emphasis on the effective protection of the right to a fair trial in closed material procedure than the ECtHR has done. Surprisingly enough, the ECtHR, which has been praised as the best functioning human rights court in Europe due to its individual application system and the rights-centred interpretations by the ECtHR,135 now fails to take the most fundamental right existing in any democratic society seriously. In the case of closed material procedure, the ECtHR should really take a lesson from the ECJ’s case law where a minimum level of information disclosure is strictly required (hopefully in the future as well, regardless of amendments made in the Rules of Procedures).

7. Conclusions

The ECJ´s approach to the publicity of its own judicial proceedings has remained at a minimum, since the main mechanisms contributing to the openness are only through the publishing of a notice of pending cases in the Official Journal, and the arrangement of a public hearing when there is a reasoned request for it. The essential part of publicity namely, the public disclosure of judicial documents by the ECJ – has not been regulated at all. Therefore, usually the parties’ arguments that are expressed in the pleadings remain hidden to a large extent. The public may have access to these pleadings only through other EU institutions when certain criteria are fulfilled. This is by no means desirable, taking into account the justificatory force that those arguments in the pleadings contain. The ECJ would benefit from the public disclosure of court documents especially when the case is closed since the arguments expressed in the pleadings have the potential to strengthen the judicial legitimacy of its rulings: the arguments expressed in the pleadings show the whole range of different conflicting arguments on which the ECJ based its judgment. In addition, public disclosure of court documents would motivate the judges to state more profoundly why the ECJ decided the case as it did.

By contrast, the ECHR regime provides the public access to ECtHR case files both in pending and closed cases. The public disclosure has several effects. Firstly, by disclosing all the documents relating to the case, every detail of the facts and all the arguments by the parties are on display, demonstrating the point at which judges have started their judicial deliberation. Secondly, the public disclosure of ECtHR’s documents demonstrates that the ECtHR has nothing to hide and shows that the human rights cases are often complex. The similar practice should also be adopted at the EU level at least when the court case is closed. Public access to ECJ case files should be the rule, with the possibility for the ECJ to classify certain files if secrecy needs to be observed.136 The development of public access to ECJ case files has been under discussion at the EU level since 2014.137 Therefore, the ECJ is surely somehow, at least in the long term, developing its judicial transparency, and the ECtHR example should be under serious consideration for adoption at the EU level as well.

The promise of the ECtHR’s bar of openness has been raised very high: Art. 40(2) ECHR explicitly provides public access to ECtHR’s cases both in pending and closed cases. However, in practice the promise is hard to fulfil. Firstly, from a logistical standpoint, the ECHR regime should adopt more flexible access to its case files. Currently, access to ECtHR documents is arranged by making an appointment at the Registry located in Strasbourg: the person seeking access to a court documents must travel to Strasbourg to see the documents. That access should certainly be re-arranged utilising electronic possibilities since access to ECtHR documents currently presupposes a physical presence in Strasbourg and thereby creates unnecessary boundaries and limitations. Secondly, the procedure for accessing case files is not working as it should: the applicant does not receive any acknowledgement that the Registry has received the request. Above all, the access procedure takes too long (no reply in six months). These two deficiencies leave the promise of openness in ECtHR’s proceedings rather empty.

In evaluating the kind of publicity of court proceedings that the ECtHR requires from Contracting States, one can draw two important conclusions. On the one hand, public access to court documents has been interpreted dynamically by the ECtHR: a national court must disclose case files of public interest even when the case is pending.138 On the other hand, the interpretations made concerning the closed material proceedings do not emphasise openness. To be clear, in cases concerning the closed material proceedings, the ECtHR interprets the openness of court proceedings from a wholly different perspective.

The general tendency provided by Art. 52(3) Charter has been that for questions on human rights, the ECJ has been encouraged to follow the ECtHR’s line of interpretation.139 The ECtHR is a rights-based court whose sole task is to interpret the ECHR, whereas in EU law the protection of human rights has generally been viewed with reference to the attainment of EU Treaty objectives.140 Consequently, the ECtHR has been seen as the authority of European human rights’ minimum standards.141 The positions may be changing due to the ECtHR’s current approach to loosen the fair trial requirements in its jurisprudence of closed material proceedings. Furthermore, the ECtHR has generally been criticised for giving more leeway to national courts than before.142 The case law of closed material proceedings demonstrate how the openness of court proceedings, as well as their fairness, have sadly become less relevant for the ECtHR. This is why the ECJ should step in by reaffirming that the European fair trial requirements should not be loosened even in closed material proceedings.

Summary of findings

Openness of their own judicial proceedingsHow much openness is expected from others?Interpretations on closed material procedure
the ECJpublishes a notice of the pending cases in the Official Journal; opens oral hearings to the public; publicly pronounces and publishes judgments;

third-party access to court documents is not provided at all
other EU institutions must disclose requested court documents when certain criteria are fulfilled (Joined cases C-514/07 P, C-528/07 and C-532/07 Sweden and Others v API and Commission)

parties are free to disclose their submissions even when a case is pending (Order in case C-376/98 Germany v Parliament and Council)
full secrecy is not in conformity with fair trial principles enshrined in Art. 47 Charter: there must be a threshold of minimum disclosure to the applicant (e.g. C-300/11 ZZ v Secretary of State for the Home Department)
the ECtHRhearings are public; hearings are filmed and recordings are available on the website; publicly pronounces and publishes judgments;

third-party access to court documents is provided both in closed and pending cases (Art. 40(2) ECHR)
Art. 10 ECHR includes a public access to court files of public interest even when the case is pending (Társaság a Szabadságjokért v. Hungary)the ECtHR has derogated from the sufficient “gist” requirement towards normalisation of the closed material procedure (e.g. Gulamhussein and Tariq v. United Kingdom)
1See e.g. B and P v. United Kingdom ECHR 2001-III para 36; Diennet v. France, Series A 325 para 33; Werner v. Austria Reports 1997-VII, p. 2508 para 45; Gautrin and Others v. France Reports 1998-III 1030–31 para 42; Guisset v France ECHR 2000-IX para 72. I use terms “publicity” and “openness” of court proceedings interchangeably since the essence of both of them is to protect the litigants against the administration of justice in secret with no public scrutiny. In other words, the administration of justice should be as open as possible; on “open justice”, see Joseph Jaconelli, Open Justice: A Critique of the Public Trial (OUP 2002).
2It has been pointed out that public trial may function as a guarantee for the fairness of the proceedings, but that publicity is mainly in the interests of society at large; see John J Cremona, ‘The Public Character of Trial and Judgment in the Jurisprudence of the European Court of Human Rights’ in Franz Matscher and Herbert Petzold, (eds), Protecting Human Rights: The European Dimension: Studies in honor of Gérard J. Wiarda (2nd edn, Heymann 1990) 107.
3Jaconelli (n 1); José Miguel Vidal Zapatero, ‘The Right to a Public Hearing: A Guarantee Downplayed by the Strasbourg Court (Art. 6.1 ECHR)’ in Pablo Santolaya Machetti and Javier García Roca (eds), Europe of Rights: A Compendium of the European Convention of Human Rights (Brill/Nijhoff 2002); on the public hearing provided by Art. 6(1) ECHR, see e.g. Robin C.A. White and Clare Ovey, The European Convention on Human Rights (5th edition, OUP 2010), 270–272; Alastair Mowbray, Cases, Materials, and Commentary on the European Convention on Human Rights (3rd edition OUP 2014), 429–431.
4Thore Neumann and Bruno Simma, ‘Transparency in International Adjudication’ in Andrea Bianchi and Anne Peters (eds), Transparency in International Law (CUP 2013), 437.
5On listing the right to be heard as a branch of transparency, see Bo Vesterdorf, ‘Transparency – Not Just a Vogue Word’ 22 Fordham Int LJ (1999) 902, at 906.
6Joined cases C-514/07 P, C-528/07 P and C-532/07 P Kingdom of Sweden v Association de la presse internationale ASBL (API) and European Commission (C-514/07 P), Association de la presse internationale ASBL (API) v European Commission (C-528/07 P) and European Commission v Association de la presse internationale ASBL (API) (C-532/07 P) [2010], ECR I-08533.
7Art. 40(2) ECHR.
8See e.g. Hjalte Rasmussen, On Law and Policy in the European Court of Justice (Martinus Nijhoff 1986); Michal Bobek, ‘The Legal Reasoning of the Court of Justice of the EU’ 39 EL Rev (2014), 418, at 426; Roman Herzog and Lüder Gerken, ‘Stop the European Court of Justice’ EU Observer (2008); editorial comments, ‘The Court of Justice in the limelight – again’ 45 CMLR (2008), 1571, at 1573.
9See e.g. Julian Dederke and Daniel Naurin, ‘Friends of the Court? Why EU governments file observations before the Court of Justice?’ 57 Eur J of Political Research (2018), 867. DOI: https://doi.org/10.1111/1475-6765.12255; Olof Larsson and Daniel Naurin, ‘Judicial independence and political uncertainty: How the risk of override affects the Court of Justice of the EU’ 70 International Organization (2016), 377. DOI: https://doi.org/10.1017/s0020818316000047; Clifford J. Carrubba, Matthew Gabel and Charles Hankla, ‘Judicial behavior under political constraints: Evidence from the European Court of Justice’ 102 American Political Science Rev (2008), 435. DOI: https://doi.org/10.1017/s0003055408080350.
10In general, transparency effects are always highly context-dependent: transparency does not always increase public confidence; see e.g. Jenny de Fine Licht, ‘Policy Area as a Potential Moderator of Transparency Effects: An Experiment’ 74 Public Administration Rev 3 (2014), 361. DOI: https://doi.org/10.1111/puar.12194.
11On justification of legal decisions, see Neil MacCormick, Legal Reasoning and Legal Theory (Clarendon Press 1978), 14. AG Maduro also pays attention to the fact that public access to parties’ submissions enhances the justification of legal decisions; see Opinion of Advocate General Maduro in joined cases C-514/07 P, C-528/07 P and C-532/07 P Sweden and Others v API and Commission (2010), para 32.
12Neumann and Simma (n 4), 438.
13Accountability of the judiciary essentially entails transparency as to how the adjudication process is conducted, how the judges are to conduct themselves, and how the courts collectively regulate the conduct of their members. It is indicated that the public, by virtue of its “right to know”, is entitled to expect that international courts and tribunals themselves adopt more transparent and more formal processes than exist today; see Paul Mahoney, ‘The International Judiciary – Independence and Accountability’ 7 The Law and Practice of Intl Courts and Tribunals (2008), 313, at 348.
14Joined cases C-514/07 P, C-528/07 P and C-532/07 P Sweden and Others v API and Commission (2010), para 92.
15Joined cases C-514/07 P, C-528/07 P and C-532/07 P Sweden and Others v API and Commission (2010), para 86.
16Joined cases C-514/07 P, C-528/07 P and C-532/07 P Sweden and Others v API and Commission (2010), para 87.
17I emphasise that the concept of “public” relating to court proceedings is basically a formal requirement and does not include any conditions concerning its content (what the content of public proceedings should be).
18Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No. 005 (came into force on 3 September 1953).
19International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171, Arts 9–14, Can TS 1976 No 47, 6 ILM 368 (came into force 23 March 1976).
20OJ 2007 C 303/1 (became legally binding after Lisbon Treaty on 1 December 2009 (OJ 2007 C 306/1)).
21See e.g. Ola Johan Settem, Applications of the ‘Fair Hearing’ Norm in ECHR Article 6(1) to Civil Proceedings: With Special Emphasis on the Balance Between Procedural Safeguards and Efficiency (Springer 2015), 64–65, 120–121.
22See e.g. Jussila v. Finland, [GC], ECHR 2006-XIV; case C- 348/16 Moussa Sacko v Commissione Territoriale per il riconoscimento della Protezione internazionale di Milano [2017], not yet published. Further, see e.g. Pekka Aalto et al., ‘Article 47 – Right to an Effective Remedy and to a Fair Trial’ in Steve Peers et al. (eds), The EU Charter of Fundamental Rights – A Commentary (Hart Publishing 2014), 1265–1266, where public hearing is handled as a synonym for oral hearing as well as for rights of the parties for a case to be presented before the court.
23 Sutter v. Switzerland, 22 February 1984, Series A no. 74, para 26; Diennet v. France Series A no. 325-A, para 33; Exel v. Czech Republic App no 48962/99 (ECtHR 5 July 2005) para 45.
24Stefan Trechsel, Human Rights in Criminal Proceedings (OUP 2005), 120–121.
25See Human Rights Committee General Comment No. 32, U.N. Doc. CCPR/C/GC/32 (2007), para 28.
26On the adversarial principle vs. protection of business secrets, see e.g. case C-450/06 Varec SA v Belgian State, [2008] ECR I-00581.
27See Art. 35 of the Statute of the Court of Justice of the European Union (OJ C 202, 7.6.2016, p. 210) and Art. 32(1) of ECJ Rules of Procedure (OJ L 265, 29.9.2012 as amended on 18 June 2013 (OJ L 173, 26.6.2013, p. 65) and on 19 July 2016 (OJ L 217,12.8.2016, p. 69); Rule 22(1) of Rules of the ECtHR (amended on 19 September 2016, new edition entered into force on 1 August 2018).
28The publishing of judgments by the Constitutional Tribunal in Poland has been neglected; on the European Commission’s reaction on the rule of law questions in Poland, see http://europa.eu/rapid/press-release_SPEECH-17-5387_en.htm (accessed on 7 May 2019).
29See Art. 21(4) of ECJ Rules of Procedure.
30See Art. 31 of Statute of the Court of Justice of the European Union.
31See Art. 37 of Statute of the Court of Justice of the European Union and Art. 88(1) of ECJ Rules of Procedure.
32See Art. 92 of ECJ Rules of Procedure.
33Under e contrario reading of Art. 76 of ECJ Rules of Procedure, the ECJ may decide a case without the oral part of the procedure if none of the parties or interested persons have submitted a reasoned request for a hearing. See more Henriikka Leppo, Improving the Court system of the European Union? The 2015 Reform of the General Court in the historical context and looking ahead (University of Helsinki 2018).
34See e.g. Maarten de Leeuw, ‘Openness in the Legislative Process in the EU’ 32 EL Rev (2007), 295; Deidre Curtin and Päivi Leino, ‘In Search of Transparency for EU Law-Making: Trilogues on the Cusp of Dawn’, 54 CMLR (2017), 1673; Maarten Hillebrandt, Deidre Curtin and Albert Meijer, ‘Transparency in the EU Council of Ministers: An Institutional Analysis’ 20 ELJ (2014), 1. DOI: https://doi.org/10.1111/eulj.12051; Gijs Jan Brandsma, Deidre Curtin and Albert Meijer, ‘How Transparent are EU ‘Comitology’ Committees in Practice?’ 14 ELJ (2008), 819. DOI: https://doi.org/10.1111/j.1468-0386.2008.00446.x; Stephen Lea and Paul James Cardwell, ‘Transparency Requirements in the Course of a Legislative Procedure: Council v. Access Info Europe’ 21 Eur PL (2015), 61.
35See further e.g. Carol Harlow and Richard Rawlings, Process and Procedure in EU Administration (Bloomsbury Publishing 2014), 140–141.
36On openness of the ECJ, see e.g. Alberto Alemanno and Oana Stefan, ‘Openness at the Court of Justice of the European Union: Toppling a taboo’ 51 CMLR (2014), 97; Neumann and Simma (n 4); Theodor Schilling, ‘Transparenz und der Gerichtshof der EG’ Zeitschrift für Europarechtliche Studien (1999), 75.
37Cf. the European Investment Bank (EIB) is similarly subject to the right of access to documents only when exercising its administrative tasks (third paragraph of Art. 15(3) TFEU). However, the EIB has itself decided to broaden the scope of public access to documents also in its other activities (not just administrative tasks) since nothing prevents the EIB from being more open than Art. 15(3) TFEU requires it to be. See the new transparency policy of the EIB adopted in 2015 (https://www.eib.org/en/infocentre/publications/all/eib-group-transparency-policy.htm, visited on 24 April 2019); see further e.g. Pieter Van Cleynenbreugel, ‘Confidentiality behind transparent doors: The European Central Bank and the EU law principle of openness’ 25 MJECL (2018), 52. DOI: https://doi.org/10.1177/1023263x18760546 and Olivier De Schutter, Johan Swinnen and Jan Wouters (eds), Foreign Direct Investment and Human Development. The law and economics of international investment agreements (Routledge 2013).
38Regulation (EC) 1049/2001 regarding public access to European Parliament, Council and Commission Documents, O.J. 2001, L 145/43.
39The requirement that a report for the hearing should be established has been abolished in the amendments made in the ECJ Rules of Procedures in 2012.
40Oral hearings are no longer held as a rule due to the amendments made in the ECJ Rules of Procedure in 2012.
41See Art. 105 of Rules of the General Court amended in 2015 and corresponding provision Art. 190a of the ECJ Rules of Procedure (inserted in 2016).
42Joined cases C-514/07 P, C-528/07 P and C-532/07 P Sweden and Others v API and Commission (2010), paras 83–104.
43One exception is, however, found at the EU level: Art. 38(2) of Rules of the Procedure of General Court provides a third-party a right of access to court files once the parties have been heard and the President of the General Court so decides. The President may grant the access in whole or in part only upon written request accompanied by a detailed explanation of the third party’s legitimate interest in having access to the file.
44Joined cases C-514/07 P, C-528/07 P and C-532/07 P Sweden and Others v API and Commission (2010) and case C-213/15 P Commission v Breyer (2017), not yet published.
45Order in case C-376/98 Germany v Parliament and Council (2000), ECR I-02247, para 10.
46Joined cases C-514/07 P, C-528/07 and C-532/07 Sweden and Others v API and Commission (2010).
47C-213/15 P Commission v Breyer (2017).
48Even though this is precisely what the Commission has suggested.
49Joined cases C-514/07 P, C-528/07 and C-532/07 Sweden and Others v API and Commission (2010), para 94 and C-213/15 P Commission v Breyer (2017), para 41.
50Joined cases C-514/07 P, C-528/07 and C-532/07 Sweden and Others v API and Commission (2010), para 131.
51Joined cases C-514/07 P, C-528/07 and C-532/07 Sweden and Others v API and Commission (2010), paras 132–135.
52T-36/04 Association de la presse internationale ASBL (API) v Commission of the European Communities (2007) ECR II-03201, paras 81–82.
53Joined cases C-514/07 P, C-528/07 and C-532/07 Sweden and Others v API and Commission (2010), para 92.
54Joined cases C-514/07 P, C-528/07 and C-532/07 Sweden and Others v API and Commission (2010), paras 94, 104.
55See e.g. Harlow and Rawlings (n 35), 140–141.
56Case C-213/15 P Commission v Breyer (2017), paras 35–36.
57 Ibid para 44.
58 Ibid para 45.
59 Ibid para 46.
60 Ibid para 49.
61Order in Case C-376/98 Germany v Parliament and Council (2000), para 10.
62T-36/04 Association de la presse internationale ASBL (API) v Commission of the European Communities, para 88; T-188/12 Patrick Breyer v European Commission (2015), not yet published, para 93.
63Opinion of AG Maduro in joined cases C-514/07 P, C-528/07 and C-532/07 Sweden and Others v API and Commission (2010), paras 16–18, 39.
64Alemanno and Stefan (n 36), 123.
65On public character of hearings, see also Rule 63 of the Rules of the ECtHR. The proceedings before the ECtHR are mainly done in writing. However, the Chamber may decide, either at the request of a party or of its motion, to hold a hearing on the admissibility or merits of the case if it considers that the discharge of its functions under the ECHR so requires (see Rules 54(5) and 59(3) of the Rules of the ECtHR). In addition, similar possibility to hold an oral hearing exists in the Grand Chamber proceedings (Rule 71(2) of the Rules of the ECtHR).
66In practice, hearings held in the morning can be viewed from 2.30 p.m. onwards, while those held in the afternoon are available during the evening. In addition, all the ECtHR’s public hearings since 2007 have been filmed and can be viewed in their entirety, with interpretation in French and English.
67Courts could be said to possess the power of legitimacy if they are able to command acceptance, mainly from the members of the community they are meant to serve, see Laurence Helfer and Anne-Marie Slaughter, ‘Toward a Theory of Effective Supranational Litigation’ 107 Yale LJ (1997), 273, at 278. DOI: https://doi.org/10.2307/797259.
68See Rule 77(2) of the Rules of the ECtHR.
69See Art. 44(3) ECHR and Rule 78 of the Rules of the ECtHR.
70Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby, ETS No. 155, entry into force on 1 November 1998.
71See Former Rules 18 (“The hearings shall be public, unless the Court shall in exceptional circumstances decide otherwise.”) and 56(2) (“The request [for advisory opinions] shall be accompanied by all documents likely to elucidate the question.”) of the former Rules of the ECtHR; see also Explanations to Protocol No. 11, para. 96.
72See more Ed Bates, The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights (OUP 2010), 461; Ed Bates, ‘The Birth of the European Convention on Human Rights – and the European Court of Human Rights’ in Jonas Christoffersen and Mikael Rask Madsen (eds), The European Court of Human Rights between Law and Politics (OUP 2011).
73This stirred particular criticism since a substantial number of states preferred a two-tier system, changing the Commission into a Court of First Instance and the ECtHR into a Court of Appeal; see more e.g. Henry G. Schermers, ‘The Eleventh Protocol to the European Convention on Human Rights’ 19 ELR (1994), 367, at 374.
74See e.g. Rudolf Bernhardt, ‘Reform of the Control machinery under the ECHR: Protocol 11’, 89 AJIL (1995), 145. DOI: https://doi.org/10.2307/2203904; Alastair R Mowbray, ‘Reform of the control system of the European Convention on Human Rights’ PL (1993), 419. In addition, public access to court documents is not listed as ‘important changes brought by Protocol 11’; see Nicolas Bratza and Michael O’Boyle, ‘The legacy of the Commission to the new court under the Eleventh Protocol’ 3 EHRLR (1997), 211, at 212.
75Luke Clements, ‘Striking the Right Balance: the New Rules of Procedure for the European Court of Human Rights’, 3 EHRLR (1999), 266, at 269.
76The author made an access request to a pending ECtHR case on 26 February 2019 (Studio Monitor and Zuriashvili v. Georgia, Appl no 44920/09, communicated on 8 September 2016) and the request was sent again on 24 April 2019 since no response was given during that time. As of 26 August 2019 the Registry has not responded to the request. The author gave the details of the pending case and explained the access request for serving the post-doctoral legal research concerning the access to documents in the ECtHR system.
77See more information about the procedure concerning the access to case files in the ECtHR, https://www.echr.coe.int/Pages/home.aspx?p=court/howitworks&c= #n1365162031743_pointer (accessed on 26 February 2019).
78See Decision of the Court of Justice of the European Union of 11 October 2016 concerning public access to documents held by the Court of Justice of the European Union in the exercise of its administrative functions (OJ C 445, 30.11.2016, p. 3).
79See e.g. Youth Initiative for Human Rights v. Serbia Appl no 48135/06 (ECtHR 25 June 2013), para 20. See further e.g. Päivi Tiilikka, ‘Access to Information as a Human Right in the Case Law of the European Court of Human Rights’ 5 Journal of Media Law (2013), 79. DOI: https://doi.org/10.5235/17577632.5.1.79.
80CETS No. 205, not yet in force [nine out of required ten ratifications on 28 May 2019].
81See second paragraph of Art. 1(2)(a)(i) of the Convention on Access to Official Documents.
82See second paragraph of Art. 1(2)(a)(ii) of the Convention on Access to Official Documents. See also Explanatory Report to the Council of Europe Convention on Access to Official Documents, p 3.
83See e.g. Társaság a Szabadságjogokért v. Hungary Appl no 37374/05 (ECtHR 14 April 2009), para 26.
84 Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung v. Austria Appl no 39534/07 (ECtHR 28 November 2013), para 46. The ECtHR has also used terms such as “obvious public interest”; see Magyar Helsinki Bizottság v. Hungary, Appl no 18030/11 [GC] (ECtHR 8 November 2016), para 180.
85 Brisc v. Romania, Appl no 26238/10 (ECtHR 11 December 2018) para 107.
86 Társaság a Szabadságjogokért v. Hungary (2009); Brisc v. Romania (2018); Studio Monitor and Zuriashvili v. Georgia (pending).
87There is a pending case that directly concerns this question; see Studio Monitor and Zuriashvili v. Georgia.
88See e.g. Brisc v. Romania (2018).
89 Társaság a Szabadságjogokért v. Hungary (2009), paras 7–11.
90 Ibid para 28.
91 Ibid.
92Landmark case Magyar Helsinki Bizottság v. Hungary (2016).
93See e.g. Youth Initiative for Human Rights v. Serbia (2013); Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirtschaftlichen Grundbesitzes v. Austria, (2013); Roşiianu v. Romania Appl no 27329/06 (ECtHR 24 June 2014).
94 Studio Monitor and Zuriashvili v. Georgia (pending). The complaint was lodged on 15 August 2009.
95The ECtHR has created these criteria in its case law before, but in Magyar Helsinki Bizottság v. Hungary (2016) it explicitly elaborates them further.
96 Magyar Helsinki Bizottság v. Hungary (2016), paras 157–170.
97 Ibid paras 158–159.
98See also ECtHR jurisprudence where it has emphasised the journalistic purposes for creating a forum for public debate when granting an access to documents, e.g. Timpul Info-Magazin and Anghel v. Moldova Appl no 42864/05 (ECtHR 27 November 2007); Guseva v. Bulgaria Appl no 6987/07 (ECtHR 17 February 2015).
99 Magyar Helsinki Bizottság v. Hungary (2016), para 162.
100 Ibid.
101See e.g. Ro şiianu v. Romania (2014), para 61.
102See e.g. Társaság a Szabadságjogokért v. Hungary (2009) para 36; Österreichische Vereinigug v. Austria (2013) para 35; Youth Initiative for Human Rights v. Serbia (2013) para 20; Guseva v. Bulgaria (2015) para 41.
103 Magyar Helsinki Bizottság v. Hungary (2016) para 168.
104 Weber v. Germany App no 70287/11 (dec) (ECtHR 29 January 2015) para 25; Bubon v. Russia Appl no 63898/09 (ECtHR 7 February 2017) para 45.
105 Studio Monitor and Zuriashvili v. Georgia (pending) para 7.
106The ECtHR has emphasised rather recently that access rights under Article 10 ECHR cannot be interpreted, meaning that the state authorities have an obligation to collect information upon the applicant’s request, particularly when a considerable amount of work is involved; see Bubon v. Russia (2017) para 45.
107See Österreichishe Vereinigung v. Austria (2013) where the ECtHR ruled that the state authorities had to copy and anonymise nearly 600 cases.
108Protocol No. 11 introduced a new provision on openness of court proceedings (Article 40); see explanations concerning Art. 40 ECHR in Explanatory Report to Protocol No. 11, para 96. On negotiations on Protocol No. 11, see Bates (n 72), 452–467; Andrew Moravcsik, ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe’ 54 International Organization (2000), 217, at 227. DOI: https://doi.org/10.1162/002081800551163; Mikael Rask Madsen, ‘The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash’ 79 Law & Contemporary Problems (2016), 141, at 145.
109See e.g. Ditlev Tamm, ‘The History of the Court of Justice of the European Union Since its Origin’ in Allan Rosas, Egils Levits and Yves Bot (eds), The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-law (Springer 2013), 9, at 17–18; Mitchel de S.-O.-L’E Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (OUP 2009), 103–141.
110See Sutter v. Switzerland (1984) para 26; Diennet v. France (1995) para 33; Exel v. Czech Republic (2005) para 45.
111See e.g. Eerikäinen and others v. Finland Appl no 3514/02 (ECtHR 10 February 2009) para 63.
112See e.g. case C-409/06, Winner Wetten GmbH v Bürgermeisterin der Stadt Bergheim [2010] ECR I-08015, para 61; C-399/11 Stefano Melloni v Ministerio Fiscal [2013] not yet reported, para 59.
113In the beginning both the authority of the ECJ and the independence of the judges were already considered to be better protected if dissenting opinions were kept secret, see Tamm (n 109), 18.
114See e.g. the submissions of the Government of Norway in Case E-1/94 Restamark, Report for the Hearing, [1994–1995] EFTA Court Report, 35.
115See further Neumann and Simma (n 4), 444.
116At the EU level there is no harmonised access regime, meaning that it wholly up to a Member State’s national legislation whether the public has access to court documents when the case is pending.
117Joined cases C-514/07 P, C-528/07 and C-532/07 Sweden and Others v API and Commission (2010), para 93.
118In practice, for example, the Commission has in its possession the most documents relating to ECJ proceedings since it is involved in preliminary reference proceedings and in actions for infringement procedures, as well as most of the procedures of other direct actions.
119Advocate General Maduro has pointed out that the ECJ should be the master of its own case since it is the only one in a position to determine whether releasing documents could have a negative impact on the proceedings (Opinion of AG Maduro in joined cases C-514/07 P, C-528/07 and C-532/07 Sweden and Others v API and Commission (2010), para 14).
120Joined cases C-514/07 P, C-528/07 and C-532/07 Sweden and Others v API and Commission (2010), para 156.
121See Art. 105 of the Rules of Procedure of the General Court (OJ L 105, 23.4.2015, p. 1).
122Amendments made on 19 July 2016 (OJ L 217, 12.8.2016, p. 69) enabling the ECJ to deal appropriately in appeals brought before it with information or material produced before the General Court in accordance with Art. 105 of its Rules of Procedure.
123See Vigjilenca Abazi and Christina Eckes, ‘Closed evidence in EU courts: security, secret and access to justice’ 55 CMLR (2018), 765.
124Eva Nanopoulos, ‘European Human Rights Law and the Normalisation of the ‘Closed Material Procedure’: Limit or Source?’ 78 MLR (2015), 913, at 930. DOI: https://doi.org/10.1111/1468-2230.12155.
125See e.g. case C-300/11 ZZ v Secretary of State for the Home Department [2013], not yet published.
126See e.g. case C-27/09 P French Republic v People's Mojahedin Organization of Iran [2011] ECR I-13427. Here the ECJ held that without the relevant information, the affected person would not be in the position to submit their observations to correct an error or produce information in favour of their position.
127See cases C-300/11 ZZ v Secretary of State for the Home Department (2013); joined cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I-6351 (Kadi I); joined cases C-584/10 P, C-593/10 P and C-595/10 P European Commission and Others v Yassin Abdullah Kadi [2013] (Kadi II). See also Nanopoulos (n 124), 930.
128See closed material procedure in the light of Art. 5, 6, 8 and 13 ECHR e.g.: Chahal v. United Kingdom, Reports of Judgments and Decisions 1996-V; Rowe and Davis v. United Kingdom ECHR 2000-II; Atlan v. United Kingdom Appl no 36533/97 (ECtHR 9 June 2001); Dowsett v. United Kingdom ECHR 2003‑VII; Fitt v. United Kingdom ECHR 2000‑II; Jasper v. United Kingdom Appl no 27052/95 (ECtHR 16 February 2000); Edwards v. United Kingdom Series A no. 247-B; Botmeh and Alami v. United Kingdom Appl no 15187/03 (ECtHR 7 June 2007); A and Others v. United Kingdom [GC] ECHR 2009; Van Wesenbeeck v. Belgium Appl nos 67496/10 and 52936/12 (ECtHR 23 May 2017); Sher and Others v. United Kingdom ECHR 2015 (extracts); Kennedy v. United Kingdom Appl no 26839/05 (ECtHR 18 May 2010); Nasr and Ghali v. Italy Appl no 44883/09 (ECtHR 23 February 2016).
129 A and Others v. the United Kingdom (2009).
130 A and Others v. United Kingdom (2009). See Abazi and Eckes (n 123), 769 and Lewis Graham, ‘Tariq v. United Kingdom: Out with a Whimper? The Final Word on the Closed Material Procedure at the European Court of Human Rights’ 25 Eur PL (2019), 43, at 46.
131 Gulamhussein and Tariq v. United Kingdom Appl nos 46538/11 and 3960/12 (dec) (ECtHR 3 April 2018); Regner v. Czech Republic [GC] ECHR 2017.
132Graham (n 130), 52; Nanopoulos (n 124), 927.
133Graham (n 130), 53.
134Nanopoulos (n 124), 925. Cf Abazi and Eckes (n 123), 768–770 where they emphasise the closed evidence procedure as an exception and the role of the ECtHR supporting the requirements derogating from Art. 6 ECHR.
135See Henry J Steiner and Philip Alston (eds), International Human Rights in Context – Law, Politics and Moral (2nd edn, OUP 2000 ), 807; Helfer and Slaughter (n 67), 296; Laurence Helfer, ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime’ 19 EJIL (2008), 125. DOI: https://doi.org/10.1093/ejil/chn004.
136See also Alemanno and Stefan (n 36), 126.
137 Ibid 122, fn. 130.
138 Társaság a Szabadságjogokért v. Hungary (2009).
139Art. 52(3) Charter states: “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as laid down by the said Convention.” See further e.g. Paul Lemmens, ‘The Relation between the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights – Substantive Aspects’ 8 MJECL (2001), 49. DOI: https://doi.org/10.1177/1023263X0100800104.
140See e.g. case C-11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel ECR 1970 p. 01125, para 4; see also Síofra O’Leary, ‘A Tale of Two Cities: Fundamental Rights Protection in Strasbourg and Luxembourg’ 20 Cambridge YB of Eur LS (2018), 3, at 12. DOI: https://doi.org/10.1017/cel.2018.3.
141See Art. 53 ECHR: “Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party.”; see also O’Leary (n 140), 8.
142Tamas Gyorfi, ’The legitimacy of the European human rights regime – a view from the United Kingdom’ 8 Global Constitutionalism (2019), 123, at 156. DOI: https://doi.org/10.1017/s2045381718000333.

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