Increasing Openness of Court Proceedings?*

Abstract

This article concentrates on the openness of court proceedings, in particular on public access to court documents at the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR). The current presumption by the ECJ is that third-party access to the ECJ’s submissions may undermine the sound administration of justice and the equality of arms principle, whereas in the ECHR system, court documents including parties’ submissions are made public as a rule, both in pending and closed cases. Accordingly, it seems that the two sibling European courts have adopted fully opposing approaches to the third-party right of access to court files. There are serious arguments for the ECJ to change its current approach, as the public’s right of access to court documents increases the justification of court cases: it strengthens the justificatory force of court judgments, and finally the legitimacy and accountability of the court itself, since it reveals more arguments based on which judges deliberate, but which are absent from the final judgment. In addition, there are some practical deficiencies in the ECtHR proceedings relating to third-party access to court documents that make the promise of transparent court hard to fulfil.