Council for Research in Values and Philosophy (The Council for Research in Values and
Philosophy 2007) 52.
10 Niklas Luhmann, Gesellschaftsstruktur Und Semantik. Studien Zur Wissenssoziologie
Der Modernen Gesellschaft. Band 3 (Suhrkamp Verlag 1989) 360.
11 Moeller (n 9) 56.
12 ibid 57.
13 Luhmann has acknowledged the difficulties of this natural law approach to law’s
positivist nature. See Luhmann, Law as a Social System (n 4) 68.
14 In the scope of this study it is impossible to provide any comprehensive analysis of due
process criteria but some notions on the most important treaty stipulations do provide
an overview of the values present in the criteria. In the European context, the ECHR
is the most important vocalization of due process. It should be noted, however, that
the case law of ECtHR is continuously commented and evaluated. See e.g., ‘Guide on
Article 6 – Civil Limb’ (Council of Europe 2013).
15 Other sections of Article 6 impose procedural rights in relation to criminal proceedings, i.e. presumption of innocence and minimum rights of the accused. Thus, the
examination here is limited to the civil limb of Article 6 and focused on section (1).
16 This point interconnects with Tuori’s theory on the levels of law, where human rights
become sedimented into the deep structure of law. K Tuori, Critical Legal Positivism
(Ashgate 2002) 197–216.
17 ‘Guide on Article 6 – Civil Limb’, available at https://www.echr.coe.int/Documents/
Guide_Art_6_ENG.pdf (accessed 26 June 2018) 41.
18 ‘. . . the principle of equality of arms is only one feature of the wider concept of a fair
trial, which also includes the fundamental right that proceedings should be adversarial . . .
The right to an adversarial trial means the opportunity for the parties to have knowledge of
and comment on the observations filed or evidence adduced by the other party.’ See e.g.,
Ruiz-Mateos v Spain (ECtHR) § 63.
19 ‘Nor is the position altered when, in the opinion of the courts concerned, the observations
do not present any fact or argument which has not already appeared in the impugned
decision. Only the parties to a dispute may properly decide whether this is the case; it is for
them to say whether or not a document calls for their comments. What is particularly at
stake here is litigants’ confidence in the workings of justice, which is based on, inter alia,
the knowledge that they have had the opportunity to express their views on every
document in the file.’ See Nideröst-Huber v Switzerland (ECtHR) § 29.
20 ‘The Court notes that the opinions in question constituted reasoned opinions on the
merits of the applicant’s appeals, manifestly aiming at influencing the decisions of the
Board for Unemployment Benefits and the Insurance Court by calling for the appeals
to be dismissed. Whatever the actual effect which the various opinions may have had
on the decision of the Insurance Court in the final instance, it was for the applicant to
assess whether they required his comments. The onus was therefore on the Insurance
Court to afford the applicant an opportunity to comment on the opinions prior to its
decision.’ See KS v Finland (ECtHR) § 23.
21 See ‘Resolution ResDH (2006) 60 Concerning the Judgment of the European Court
of Human Rights of 31 May 2001 (Final on 12 December 2001) in the Case of KS
against Finland.’
22 ‘The Court reiterates that, according to its established case-law, Article 6 para. 1 (art.
6-1) secures to everyone the right to have any claim relating to his civil rights and
obligations brought before a court or tribunal; in this way it embodies the “right to a
court”, of which the right of access, that is the right to institute proceedings before
courts in civil matters, constitutes one aspect (see the Philis v. Greece judgment of 27
August 1991, Series A no. 209, p. 20, para. 59). However, that right would be illusory
if a Contracting State‘s domestic legal system allowed a final, binding judicial decision
to remain inoperative to the detriment of one party. It would be inconceivable that
174 Three quests for justification
Philosophy 2007) 52.
10 Niklas Luhmann, Gesellschaftsstruktur Und Semantik. Studien Zur Wissenssoziologie
Der Modernen Gesellschaft. Band 3 (Suhrkamp Verlag 1989) 360.
11 Moeller (n 9) 56.
12 ibid 57.
13 Luhmann has acknowledged the difficulties of this natural law approach to law’s
positivist nature. See Luhmann, Law as a Social System (n 4) 68.
14 In the scope of this study it is impossible to provide any comprehensive analysis of due
process criteria but some notions on the most important treaty stipulations do provide
an overview of the values present in the criteria. In the European context, the ECHR
is the most important vocalization of due process. It should be noted, however, that
the case law of ECtHR is continuously commented and evaluated. See e.g., ‘Guide on
Article 6 – Civil Limb’ (Council of Europe 2013).
15 Other sections of Article 6 impose procedural rights in relation to criminal proceedings, i.e. presumption of innocence and minimum rights of the accused. Thus, the
examination here is limited to the civil limb of Article 6 and focused on section (1).
16 This point interconnects with Tuori’s theory on the levels of law, where human rights
become sedimented into the deep structure of law. K Tuori, Critical Legal Positivism
(Ashgate 2002) 197–216.
17 ‘Guide on Article 6 – Civil Limb’, available at https://www.echr.coe.int/Documents/
Guide_Art_6_ENG.pdf (accessed 26 June 2018) 41.
18 ‘. . . the principle of equality of arms is only one feature of the wider concept of a fair
trial, which also includes the fundamental right that proceedings should be adversarial . . .
The right to an adversarial trial means the opportunity for the parties to have knowledge of
and comment on the observations filed or evidence adduced by the other party.’ See e.g.,
Ruiz-Mateos v Spain (ECtHR) § 63.
19 ‘Nor is the position altered when, in the opinion of the courts concerned, the observations
do not present any fact or argument which has not already appeared in the impugned
decision. Only the parties to a dispute may properly decide whether this is the case; it is for
them to say whether or not a document calls for their comments. What is particularly at
stake here is litigants’ confidence in the workings of justice, which is based on, inter alia,
the knowledge that they have had the opportunity to express their views on every
document in the file.’ See Nideröst-Huber v Switzerland (ECtHR) § 29.
20 ‘The Court notes that the opinions in question constituted reasoned opinions on the
merits of the applicant’s appeals, manifestly aiming at influencing the decisions of the
Board for Unemployment Benefits and the Insurance Court by calling for the appeals
to be dismissed. Whatever the actual effect which the various opinions may have had
on the decision of the Insurance Court in the final instance, it was for the applicant to
assess whether they required his comments. The onus was therefore on the Insurance
Court to afford the applicant an opportunity to comment on the opinions prior to its
decision.’ See KS v Finland (ECtHR) § 23.
21 See ‘Resolution ResDH (2006) 60 Concerning the Judgment of the European Court
of Human Rights of 31 May 2001 (Final on 12 December 2001) in the Case of KS
against Finland.’
22 ‘The Court reiterates that, according to its established case-law, Article 6 para. 1 (art.
6-1) secures to everyone the right to have any claim relating to his civil rights and
obligations brought before a court or tribunal; in this way it embodies the “right to a
court”, of which the right of access, that is the right to institute proceedings before
courts in civil matters, constitutes one aspect (see the Philis v. Greece judgment of 27
August 1991, Series A no. 209, p. 20, para. 59). However, that right would be illusory
if a Contracting State‘s domestic legal system allowed a final, binding judicial decision
to remain inoperative to the detriment of one party. It would be inconceivable that
174 Three quests for justification