112 Legal Digest of International Fair Trial Rights 6.1.2 Equality in presenting one’s case: the adversarial nature of proceedings It is a fundamental duty of the courts to ensure equality between the parties, including the ability to contest all the arguments and evidence adduced by the other party.446 For the European Court of Human Rights this means the opportunity for the parties to a trial to have knowledge of and comment on all evidence adduced or observations filed by the other party, such that: “Each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent.”447 In McMichael v the United Kingdom, a case involving the decision on child custody, the European Court of Human Rights found that the applicant’s right to a fair trial had been impaired because reports related to the child were not made available to him. This practice revealed a basic inequality and placed the parent at a substantial disadvantage, both in respect of bringing an appeal and in the subsequent presentation of any appeal.448 In Steel and Morris v the United Kingdom, the applicants were respondents in a civil defamation suit brought by McDonalds. They were unemployed and, despite the enormous imbalance in resources between them and the large and high profile legal team representing McDonalds, Steel and Morris were denied legal aid (See also 6.6.7) and were, therefore, obliged to represent themselves. The European Court held that the denial of legal aid contributed to an unacceptable inequality of arms between the parties. It stated: “The Court recalls that the Convention is intended to guarantee practical and effective rights. This is particularly so of the right of access to court in view of the prominent place held in a democratic society by the right to a fair trial… It is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court… and that he or she is able to enjoy equality of arms with the opposing side…”449 In the context of criminal trials, the equality in presenting the case is a particularly relevant safeguard for the defendant. It determines the very nature of criminal proceedings, which should be “adversarial”. In other words, the right to an adversarial trial is a direct corollary to the principle of equality of arms. As the European Court of Human Rights puts it: “It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence.”450 446 Äärelä and Näkkäläjärvi v Finland, HRC Communication 779/1997, UN Doc CCPR/C/73/D/779/1997 (2001), para 7.4; Asch v Austria [1991] ECHR 28, para 27. 447 Dombo Beheer B. V. v the Netherlands [1993] ECHR 49, para 33. See also: Ankerl v Switzerland [1996] ECHR 45, para 38; Helle v Finland [1997] ECHR 105, para 49; Krcmar and Others v the Czech Republic [2000] ECHR 99, para 39; Steel and Morris v the United Kingdom [2005] ECHR 103, para 62; Van Orshoven v Belgium [1997] ECHR 33, para 41; Ruiz-Mateos v Spain [1993] ECHR27, para 63; Dowsett v the United Kingdom [2003] ECHR 314, para 41. 448 McMichael v the United Kingdom [1995] ECHR 8, paras 82–83. 449 Steel and Morris v the United Kingdom [2005] ECHR 103, para 59. 450 Rowe and Davis v the United Kingdom [2000] ECHR 91, para 60.