European Court of Human Rights - case of Tierce and Others v. San Marino  (2000) (excerpts)

European Court of Human Rights - case of Tierce and Others v. San Marino  (2000) (excerpts)

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95.  The absence of public hearings on appeal may be justified by the special features of the proceedings in issue, provided that there has been a public hearing at first instance. Thus, leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6 even if the appellant has not been given the opportunity of being heard in person by the appellate court (see the Ekbatani v. Sweden judgment of 26 May 1988, Series A no. 134, p. 14, § 31).

However, where an appellate court has to examine a case as to the facts and the law and make a full assessment of the issue of guilt or innocence, it cannot determine the issue without a direct assessment of the evidence given in person by the accused for the purpose of proving that he did not commit the act allegedly constituting a criminal offence. The principle that hearings should be held in public entails the right for the accused to give evidence in person to an appellate court. From that perspective, the principle of publicity pursues the aim of guaranteeing the accused's defence rights.