In other words, decisions that there has been a violation of Article 6 (or that
there has not been one) form structures within the legal system. This means that
they become dominant positions of moral communication. These safeguards of
due process are formed by a network of specific communications stipulating that
certain applications of legal/illegal intersect with regard/disregard, i.e. precedent
cases. In order to avoid further escalation in applying the legal system’s code,
these structures of earlier communications need to be accommodated in future
cases. It follows from this that the concrete due process criteria (e.g. principle of
audiatur altera pars, or let the other side also be heard) become an internal
programme of the legal system.
16 These programmes are significant elements for
networking future operations within the legal system but they have no external
reference point outside it. Thus, the authority of case law on access to justice
draws its strength from the morality of these communications, which is then
historicised internally within the legal system.
It follows from this that we are only able to analyse these individual moral
communications on dispute resolution and the programmes they form within the
legal system. Hence it is possible to evaluate how they guide the application of
legal/illegal. However, it is not possible to contest, whether the ‘right’ conclusions
were drawn in these formative cases on Article 6, as such a position would only be
another instance of moral communication. There is no external reference in moral
communication, which would justify the authority of ECtHR’s moral communication, outside the constitution of the court in specific and the delegation of
sovereign power from the Contracting States to the Convention instrument itself
or to Council of Europe in general. We may only reach the individual communications of decisions and deduce from those what has been communicated about
dispute resolution with the simple authority of moral communication.
One example of moral communication on due process is the ECtHR’s case law
on equality of arms and on adversarial nature of the proceedings, which emphasises the parties’ equal means of making their case in adversarial proceedings.
According to the Court, adversarial proceedings form the cornerstone of the
right to fair trial.
17 The content of adversarial proceedings comes down to the
right to have knowledge of all evidence presented in the case and the possibility
to comment on said evidence.
18 The case law highlights that the parties alone
have the right to decide whether or not to comment on specific documents.
19
In the case K.S. v Finland the ECtHR established that there had been a
violation of Article 6, because no possibility to comment on documents obtained
by the court was granted to the plaintiff in an unemployment benefit case. In the
case the applicant had been dismissed from his post as a tax inspector with six
months’ notice in 1991, because he had been found to continuously neglect his
duties. After his dismissal the applicant had applied for unemployment benefit
from the Unemployment Fund for Lawyers and Legal Associates, which the
Fund refused on the ground that the applicant had caused the dismissal
himself. The decision was based on the binding opinion of the Employment
Commission, which the Fund was by law obliged to follow. The plaintiff then
appealed first to the Board of Unemployment Benefits, which dismissed the
Access to justice 167
there has not been one) form structures within the legal system. This means that
they become dominant positions of moral communication. These safeguards of
due process are formed by a network of specific communications stipulating that
certain applications of legal/illegal intersect with regard/disregard, i.e. precedent
cases. In order to avoid further escalation in applying the legal system’s code,
these structures of earlier communications need to be accommodated in future
cases. It follows from this that the concrete due process criteria (e.g. principle of
audiatur altera pars, or let the other side also be heard) become an internal
programme of the legal system.
16 These programmes are significant elements for
networking future operations within the legal system but they have no external
reference point outside it. Thus, the authority of case law on access to justice
draws its strength from the morality of these communications, which is then
historicised internally within the legal system.
It follows from this that we are only able to analyse these individual moral
communications on dispute resolution and the programmes they form within the
legal system. Hence it is possible to evaluate how they guide the application of
legal/illegal. However, it is not possible to contest, whether the ‘right’ conclusions
were drawn in these formative cases on Article 6, as such a position would only be
another instance of moral communication. There is no external reference in moral
communication, which would justify the authority of ECtHR’s moral communication, outside the constitution of the court in specific and the delegation of
sovereign power from the Contracting States to the Convention instrument itself
or to Council of Europe in general. We may only reach the individual communications of decisions and deduce from those what has been communicated about
dispute resolution with the simple authority of moral communication.
One example of moral communication on due process is the ECtHR’s case law
on equality of arms and on adversarial nature of the proceedings, which emphasises the parties’ equal means of making their case in adversarial proceedings.
According to the Court, adversarial proceedings form the cornerstone of the
right to fair trial.
17 The content of adversarial proceedings comes down to the
right to have knowledge of all evidence presented in the case and the possibility
to comment on said evidence.
18 The case law highlights that the parties alone
have the right to decide whether or not to comment on specific documents.
19
In the case K.S. v Finland the ECtHR established that there had been a
violation of Article 6, because no possibility to comment on documents obtained
by the court was granted to the plaintiff in an unemployment benefit case. In the
case the applicant had been dismissed from his post as a tax inspector with six
months’ notice in 1991, because he had been found to continuously neglect his
duties. After his dismissal the applicant had applied for unemployment benefit
from the Unemployment Fund for Lawyers and Legal Associates, which the
Fund refused on the ground that the applicant had caused the dismissal
himself. The decision was based on the binding opinion of the Employment
Commission, which the Fund was by law obliged to follow. The plaintiff then
appealed first to the Board of Unemployment Benefits, which dismissed the
Access to justice 167