Chapter iv  Right to a Public Hearing 79 ings on the merits of a case (for both criminal and non-criminal proceedings) should be conducted orally and publicly.296 The European Court of Human Rights has similarly spoken of the right to a public hearing on at least one level of jurisdiction, which would normally occur during the trial at first instance.297 It should be noted that the right to a public hearing may not apply to pre-trial or appellate proceedings, which might take place on the basis of written evidence or submissions (See also 10.3).298 The Human Rights Committee has taken the view, in this regard, that the absence of oral hearings in appellate proceedings raises no issue, by itself, under Article 14(1) of the ICCPR.299 It has similarly concluded that the right to a public hearing does not apply to pre-trial decisions made by prosecutors and public authorities.300 4.1 Legal grounds for exclusion of the press and public Both the ICCPR and the ECHR protect the freedom of expression and the function of media as oversight mechanisms to ensure public scrutiny of the administration of justice. Therefore, the right to a public hearing encompasses the right for the press to be present at court proceedings. However, the right to a public hearing is a qualified right. Article 14(1) of the ICCPR and Article 6(1) of the ECHR reflect the authority of courts to exclude all or part of the public from a hearing for reasons of morals (See also 4.1.2), public order (See also 4.1.3), national security (See also 4.1.4), the interest of the private lives of the parties (See also 4.1.5) or to avoid prejudice to the interests of justice (See also 4.1.6).301 Apart from these exceptional circumstances, a hearing must be open to the public, including members of the media, and must not, for instance, be limited to a particular category of persons.302 In order to ensure that any restriction is both necessary and proportionate (See also 4.1.1), restrictions on the right to a public hearing must be strictly required in order to achieve one or more of the reasons just identified and must be assessed on a case-by-case basis. As well as considering the legal grounds for exclusion of the public from a hearing, it should be noted that the convening of hearings in public might be waived in limited circumstances (See also 4.1.7). 296 UN Human Rights Committee, CCPR General Comment 32 (2007), para 28. 297 Fischer v Austria [1995] ECHR 11, para 44; Hummatov v Azerbaijan [2007] ECHR 1026, para 141; and Schlumpf v Switzerland [2009] ECHR 36. 298 UN Human Rights Committee, CCPR General Comment 32 (2007), para 28. 299 R. M. v Finland, HRC Communication 301/1988, UN Doc CCPR/C/35/D/301/1988 (1989), para 6.4. See also Bulut v Austria [1996] ECHR 10, paras 40–41; and Hummatov v Azerbaijan [2007] ECHR 1026, para 141. 300 Kavanagh v Ireland, HRC Communication 819/1998, UN Doc CCPR/C/71/D/819/1998 (2001), para 10.4, where the Human Rights Committee concluded that there was no violation of the right to a public hearing in circumstances where the author was not heard by the Department of Public Prosecutions on the decision to convene a Special Criminal Court. 301 The Universal Declaration of Human Rights (adopted by the UN General Assembly under its resolution 217 (III) of 10 December 1948) simply refers in Article 10 to the right to a public hearing, without describing any potential grounds of restriction. 302 UN Human Rights Committee, CCPR General Comment 32 (2007), para 29. Vasilskis v Uruguay, HRC Communication 80/1980, UN Doc CCPR/C/18/D/80/1980 (1983), para 11; Guerra de la Espriella v Colombia, HRC Communication 1623/2007, UN Doc CCPR/C/98/D/1623/2007 (2010), para 9.3.