Chapter vi  Equality of Arms and Rights to a Fair Hearing 111 to within Article 6 of the ECHR, the principle of equality of arms is both an autonomous concept and inherent element of the overarching right to a fair hearing under the ECHR.438 It has been expressly acknowledged by both the Human Rights Committee and the European Court of Human Rights that the principle of equality of arms is applicable to criminal and non-criminal proceedings alike.439 However, in the context of criminal trials where the character of the proceedings already involves a fundamental inequality of the parties, the principle of equality of arms is even more important.440 6.1.1 Procedural equality The Human Rights Committee has described equality of arms as requiring the enjoyment of the same procedural rights by all the parties, unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness.441 In the context of criminal proceedings, the European Commission of Human Rights (as it was then called, in 1962) referred to the equality of arms as the “procedural equality of the accused with the public prosecutor”.442 Procedural inequalities may relate, for example, to the holding of hearings in absentia (See also 6.5.3); to a situation where only the prosecutor, but not the defendant, is allowed to appeal a decision (See also 10.1);443 or to a refusal to adjourn proceedings for one party in the proceedings where adjournments have been allowed for the other party. In Dudko v Australia, the applicant was not present in court at the hearing of her application for leave to appeal because she was in custody, although prosecutorial authorities were represented, since the practice in New South Wales was that people in custody did not appear in the High Court. Due to a lack of explanation by the State in support of this procedural inequality, the Human Rights Committee failed to understand why an unrepresented defendant in detention should be treated more unfavourably than an unrepresented defendant not in detention, and therefore found this to be in violation of Article 14(1) of the ICCPR.444 The refusal of a trial judge to order an adjournment to allow the defendant in Robinson v Jamaica to have legal representation, when several adjournments had already been ordered when the prosecution’s witnesses were unavailable or unready, was also found to violate Article 14(1) on the basis that this amounted to an inequality of arms between the parties.445 438 Ofner and Hopfinger v Austria [1963] European Commission of Human Rights, p. 78, para 46; Neumeister v Austria [1968] ECHR 1, para 22; Delcourt v Belgium [1970] ECHR 1, para 28. 439 UN Human Rights Committee, CCPR General Comment 32 (2007), para 13; Dombo Beheer B.V. v the Netherlands [1993] ECHR 49, para 33; Steel and Morris v the United Kingdom [2005] ECHR 103, para 59. 440 Pieter Van Dijk and Fried van Hoof, Theory and Practice of the European Convention on Human Rights (Intersentia, 2nd Ed, 1990), p.319. 441 UN Human Rights Committee, CCPR General Comment 32 (2007), para 13. 442 Ofner and Hopfinger v Austria [1963] European Commission of Human Rights, p. 78, para 46. 443 Weiss v Austria, HRC Communication 1086/2002, UN Doc CCPR/C/77/D/1086/2002 (2003), para 6.4. 444 Dudko v Australia, HRC Communication 1347/2005, UN Doc CCPR/C/90/D/1347/2005 (2007), para 7.4. 445 Robinson v Jamaica, HRC Communication 223/1987, UN Doc CCPR/C/35/D/223/1987 (1989), para 10.4.