procedure therefore means to strike a proper balance between written and oral
forms of procedure.
Principle of ImmediacyClosely related is the principle of immediacy. According
to this principle, everything on which the court should base its judgment has to be
produced in the presence of the court in an oral hearing. Even if the principle of
orality is not embraced, this could mean that written evidence is only allowed to be
used in a judgment if it has been read out aloud in the presence of the parties or
accused, who had the opportunity to respond and comment on it.
The weight of this principle is valued higher in criminal than in civil cases.
Accordingly, many jurisdictions order a retrial if a criminal judge has to be
replaced, whereas the substitution of judges in civil cases is often (with exceptions,
like Germany) merely considered undesirable but without further consequences.
13.3.2.5 Right to Produce Evidence
Claims and defenses are in most cases based on alleged facts. If those alleged facts
are indeed underpinning what has been put forward but has been disputed (by one of
the parties, by the public prosecutor, or maybe by the court itself), the right to a fair
trial entails that these facts will be the object of evidence and (following from the
principle of equality of arms) counterevidence. In other words, no claim or defense
should be dismissed simply because the court does not believe the alleged facts.
Peric ́had a contract that stipulated that her neighbors would take care of her the rest of her
life in exchange of all her property after her death. She claimed termination of the
agreement for a breach of contract. The court ordered hearing of witnesses on both sides.
However, after hearing the witnesses of the neighbor the court decided that the case was
clear and that Peric ́’s witnesses would not be heard. Obviously, her claim was dismissed.
This violated her right to produce evidence (ECtHR 27 March 2008,Peric ́v. Croatia).13.3.2.6 Right to a Reasoned Judgment
Losing a case in court is not an enjoyable experience, but it is even worse if you
don’t know why. Even winning without knowing why is only a mixed blessing.
Court decisions should be verifiable and acceptable, the first requirement allowing
one to follow the reasoning and the second requirement allowing one to approve of
it, if it is in accordance with the law. Courts should therefore give reasons for their
decisions.
This does not mean, however, that every argument of the parties has to be
discussed in detail. Only essential statements that could affect the outcome of the
case have to be considered. Likewise, some decisions are merely preparatory and do
not touch on the rights and obligations of the parties (like fixing the date of a trial),
in which case grounds are not needed at all.
Secret of the DeliberationsThe way grounds for decisions are given depends on
the domestic legal system, legal culture, and legal tradition and on differences with
regard to statutory provisions, customary rules, legal opinion, and the presentation
298 F. Fernhout and R. van Rhee