Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the court’s decision”.25 In the words of the Court, “various ways are conceivable in which national law may secure that this requirement is met”, but “whatever method is chosen, it should ensure that the other party will be aware that observations have been filed and will get a real opportunity to comment thereon”.26 Consequently, in the Lobo Machado case, which concerned proceedings regarding social rights, the Deputy Attorney-General advocated in an opinion – to which the applicant had no access – that the appeal to the Supreme Court be dismissed; this constituted a breach of article 6(1) which was “aggravated by the presence of the Deputy Attorney-General at the Supreme Court’s private sitting”.27 The case of Brandstetter In the case of Brandstetter, which concerned defamation proceedings, the Vienna Court of Appeal had relied on submissions of the Senior Public Prosecutor which had not been sent to the applicant and of which he and his lawyer were not even aware. For the Court, it did not help in this case that the Supreme Court had subsequently quashed the relevant appeal court judgement: in its view an “indirect and purely hypothetical possibility for an accused to comment on prosecution arguments included in the text of a judgement can scarcely be regarded as a proper substitute for the right to examine and reply directly to submissions made by the prosecution”. Furthermore, “the Supreme Court did not remedy this situation by quashing the first judgment since its decision was based on a ground entirely unrelated to the matter in issue”.28 The right to equality of arms or the right to truly adversarial proceedings in civil and criminal matters forms an intrinsic part of the right to a fair hearing and means that there must at all times be a fair balance between the prosecution/plaintiff and the defence. At no stage of the proceedings must any party be placed at a disadvantage vis-à-vis his or her opponent. 25 Eur. Court HR, Case of Lobo Machado v. Portugal, judgment of 20 February 1996, Report 1996-I, para. 31 at p. 207. 26 Eur. Court HR, Case of Brandstetter v. Austria, judgment of 28 August 1991, Series A, No. 211, pp. 27-28, para. 67; emphasis added. 27 Eur. Court HR, Case of Lobo Machado v. Portugal, judgment of 20 February 1996, Report 1996-I, pp. 206-207, paras. 31-32. 28 Eur. Court HR, Case of Brandstetter v. Austria, judgment of 28 August 1991, Series A, No. 211, p. 28, para. 68. 260 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers