the right to a fair court; the hierarchy of human rights; classification of the rights and freedoms of the Convention; level of protection; prioritisation; conflicts of rights

Abstract

The discussion on the existence of the hierarchy of human rights and possible their prioritization by providing a higher level of protection to certain rights there exists already several decades. The prevailing doctrine of human rights interdependence and indivisibility almost negates such a philosophical discussion. As a result, the discussion on the possible hierarchy of the human rights established in the European Convention of Human Rights practically does not take place. The doctrine proposes various classifications of the Convention rights and freedoms f that are based on various grounds.
The European Court of Human Rights has also not given a clear opinion on this issue in its practice. Despite the prevailing opinion on this issue, nonetheless some specialists of hu- man rights do not deny the possibility of the existence of the human rights, even more they envisage the advantages of such a hierarchy. Moreover, analysing the case-law of the Court, i.e. the issue of the two competing rights – the right to a fair court and other rights of the Convention, an unambiguous conclusion cannot be made on the existence of such a hierarchy and the protection level of the right to a fair court with respect to other rights of the Convention.
It should be noted that the term used in this Article – the right to a fair court – is held to be the constituent right of the right to a fair trial, established in Article 6 of the Convention, comprising of such elements: the right to a court, equality of arms, adversarial process, the right to be silent, the right not to incriminate oneself, the right to communicate with the counsel, the right to effective and personal participation in the court proceedings and the right to a reasoned judgement of the court.
The article comprises of three parts. The character of the right to a fair court on the basis of various classifications of the Convention rights and freedoms presented in the doctrine is analysed in the first part of the article. In the second part of the article the author raises the question, if there exists at least the conditional hierarchy of the Convention rights and freedoms and where is the place of the right to a fair court in such a hierarchy. In the last part of the article the author attempts to answer the question what is the level of protection in respect to the freedom of expression on the basis of the analysis of the two competing rights – the right to a fair court and the freedom of expression. Systematic, comparative and analytical methods are applied for the grounding of the conclusions made in this article.