The ‘Personal Participation’ Issue

Abstract

In this chapter, the author discusses the issue of when a civil litigant is entitled to attend and participate in person at an oral hearing, if such a hearing is held in the first place. This is referred to as the personal participation issue. The Strasbourg Court’s general approach has been that as a starting point, a civil litigant is not entitled to participate in person at the oral hearing. In contrast to how the ‘oral hearing’ issue has been approached, the burden is on the applicant to show that personal participation had been indispensable for the sake of the fairness of the proceedings. At the same time, the case law shows that the threshold is not necessarily high in this regard. Similarly to how the Court in many cases has approached the ‘oral hearing’ issue, if it appears possible that the party’s personal participation could have been of some practical significance, then a refusal of leave to attend will easily be found to have been unjustified. For the sake of clarification, the author proposes that the Court should refine its general approach to the ‘personal participation’ issue, and bring it more into line with its approach to the related ‘oral hearing’ issue.