Contents - Constitutional Court of Georgia

The European Courtof Human Rights is Fifty. Recent trends in the Court’s jurisprudence
a judgment finding a lie in the lustration procedure leads to the dismissal of the person
subject to lustration from the public function exercised by him or her and prevents this
person from applying for a large number of public posts for a period of ten years. “It is
true that neither imprisonment nor a fine can be imposed on someone who has been
found to have submitted a false declaration. Nevertheless, the Court notes that the prohibition
on practising certain professions (political or legal) for a long period of time may
have a very serious impact on a person, depriving him or her of the possibility of continuing
professional life. This may be well deserved, having regard to the historical context in
Poland, but it does not alter the assessment of the seriousness of the imposed sanction.
This sanction should thus be regarded as having at least partly punitive and deterrent
character” 58 .
The Ezeh and Connors v. the United Kingdom judgment of 9 October 2003 paved the
way, in many countries, for the guarantees of the due process in disciplinary proceedings
in prison. The Ganci v. Italy jugdment of 30 October 2003 completed the movement by extending
the application of Article 6 to disputes over restrictions imposed on a prisoner, as
some of them clearly fell within the scope of civil rights and obligations 59 .
As to civil rights and obligations, concerning the applicability of Article 6 to civil servants,
the Vilho Eskelinen and Others v. Finland judgment of the Grand Chamber of 19 April 2007
is of high importance since the Court “finds that the functional criterion adopted in the
case of Pellegrin must be further developed. While it is in the interests of legal certainty,
foreseeability and equality before the law that the Court should not depart, without good
reason, from precedents laid down in previous cases, a failure by the Court to maintain a
dynamic and evolutive approach would risk rendering it a bar to reform or improvement” 60 .
Now, the Court held that “there will, in effect, be a presumption that Article 6 applies. It will
be for the respondent Government to demonstrate, first, that a civil-servant applicant does
not have a right of access to a court under national law and, second, that the exclusion of
the rights under Article 6 for the civil servant is justified” 61 .
Turning now to the guarantees of Article 6, particularly the principle of due hearing
of the parties (“le principe du contradictoire”), videoconference is becoming a sensitive
issue, notably in large countries, where considerable distances separate the courts and
tribunals. The Marcello Viola v. Italy judgment of 5 October 2006 is the leading judgment
today. If the accused’s participation at the hearing by videoconference is not, in itself, in
breach of the Convention, it is up to the Court to ensure that its use, in each individual
case, pursues a legitimate aim, and that the arrangements for the conduct of the pro-
58 ECtHR, Matyjek v. Poland, decision of 30 May 2006, § 55.
59 ECtHR, Ganci v. Italy, judgment of 30 October 2003, § 25.
60 ECtHR (GC), Vilho Eskelinen and Others v. Finland, judgment of 19 April 2007, § 56.
61 Ibid., § 62 in fine.
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