Lexploria

Application No. 13942/88

Martin KRASKA

against

SWITZERLAND

REPORT OF THE COMMISSION

(adopted on 15 October 1991)

TABLE OF CONTENTS

PAGE

I. INTRODUCTION

(paras. 1 - 14) ........................................ 1

A. The application

(paras. 2 - 4) ................................. 1

B. The proceedings

(paras. 5 - 9) ................................. 1

C. The present Report

(paras. 10 - 14) ............................... 2

II. ESTABLISHMENT OF THE FACTS

(paras. 15 - 41) ....................................... 3

A. The particular circumstances of the case

(paras. 15 - 34) ............................... 3

1. Proceedings before the Zurich authorities

(paras. 15 - 24) ........................... 3

2. Proceedings before the Federal Court

(paras. 25 - 34) ........................... 4

B. Relevant domestic law

(paras. 35 - 41) ............................... 6

III. OPINION OF THE COMMISSION

(paras. 42 - 73) ....................................... 8

A. Complaint declared admissible

(para. 42) ..................................... 8

B. Point at issue

(para. 43) .................................... 8

C. Applicability of Article 6 para. 1 of the

Convention

(paras. 44 - 61) ............................... 8

D. Compliance with Article 6 para. 1 of the

Convention

(paras. 62 - 72) ............................... 11

E. Conclusion

(para. 73) ..................................... 12

DISSENTING OPINION OF MM. MARTINEZ and J.-C. GEUS JOINED BY MM. F.

ERMACORA AND B. MARXER ........................ 13

APPENDIX I : HISTORY OF THE PROCEEDINGS .................. 14

APPENDIX II : DECISION ON THE ADMISSIBILITY ............... 15

I. INTRODUCTION

1. The following is an outline of the case, as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant, a Swiss national born in 1950, is a doctor

residing at Zurich.

3. The application is directed against Switzerland. The

Government are represented by their Deputy Agent, Mr. Ph. Boillat,

Head of the European Law and International Affairs Section of the

Federal Office of Justice.

4. The case concerns the applicant's complaint under Article 6

para. 1 of the Convention that a Federal Court judge decided on 22

October 1987 on his public law appeal without knowing the entire

case-file.

B. The proceedings

5. The application was introduced on 2 April 1988 and registered

on 15 June 1988.

6. On 8 September 1989 the Commission decided to give notice of

the application to the respondent Government and to invite them to

present their observations in writing on the admissibility and merits

of the application limited to the issue under Article 6 para. 1 of the

Convention.

7. The Government's observations were submitted on 22 December

1989. The applicant submitted his observations in reply on 21 January

1990.

8. On 4 October 1990 the Commission declared the application

admissible insofar as it related to the applicant's complaint under

Article 6 para. 1 of the Convention concerning the proceedings before

the Federal Court. The remainder of the application was declared

inadmissible.

9. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement of the case. Consultations with the parties took place

between 12 October 1990 and 23 March 1991. The Commission now finds

that there is no basis on which such a settlement can be effected.

C. The present Report

10. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

11. The text of this Report was adopted on 15 October 1991 and is

now transmitted to the Committee of Ministers of the Council of Europe,

in accordance with Article 31 para. 2 of the Convention.

12. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

under the Convention.

13. A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the Application as Appendix II.

14. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

1. Proceedings before the Zurich authorities

15. After successfully passing the required examinations, the

applicant obtained his diploma in medicine in 1981. Since then he has

been working inter alia as an assistant doctor (Assistenzarzt). In

respect of this activity he does not require an additional

authorisation in the Canton of Zurich.

16. On 19 October 1982 the applicant was further granted the

authorisation independently to work as a doctor in the Canton of

Zurich. On 26 April 1983 the authorisation was withdrawn by the Zurich

Health Direction (Gesundheitsdirektion) on the ground that he had not

made use of this authorisation, in particular as he had moved to

another area in Switzerland.

17. The applicant's appeal (Rekurs) against this decision was

dismissed by the Zurich Council of State (Regierungsrat) on 17 August

1983. The Council of State found that the mere fact that the

applicant's authorisation had been terminated and that, on payment of

a small fee, it could again be granted once the applicant resumed his

practice in Zurich, did not suffice to create for the applicant a

legally protected interest to obtain an appeal decision. The Council

of State further found that in any event the authorisation

independently to practise as a doctor was not a general authorisation

to practise at an undetermined moment in time. Rather, it concerned

a concrete activity. The applicant however no longer lived in the

Canton of Zurich.

18. Between 6 August and 17 September 1984 the Emergency Service

of the Medical Association of the Zurich District (Ärztlicher Not-

falldienst des Ärzteverbandes des Bezirks Zürich) employed the

applicant as an assistant doctor.

19. On 28 August 1984 the applicant fetched the patient Mrs. E.

de V., who was partly paralysed and residing at a private old persons'

home, and brought her into her flat in Zurich where he organised her

treatment. On 29 August 1984 the Emergency Service requested the

applicant to treat Mrs. E. de V. The applicant subsequently prepared

on a form of the Emergency Service of the Medical Association his bill

for the treatment of Mrs. E. de V., amounting to 7,447.80 SFr. The

applicant transmitted the bill to the curator (gesetzlicher Vertreter)

of Mrs. E. de V. who on 13 September 1984 was provisionally placed

under tutelage. The bill was to be paid directly into the applicant's

postal account (Postscheckkonto) rather than the account of the Medical

Association.

20. The applicant was then charged with fraud and certain

contraventions of the Zurich Health Act (Gesetz über das Gesundheits-

wesen) of 1962. He was accused inter alia of having treated Mrs. E.

de V. without being in possession of an authorisation independently to

practise as a doctor, as required by Section 7 para. 1 (a) of the

Health Act (see below, Relevant domestic law).

21. On 13 January 1986 the Zurich District Court (Bezirksgericht)

acquitted the applicant, noting inter alia that the bill of indictment

had not stated with sufficient precision which medical treatment the

applicant had undertaken without the authorisation independently to

practise as a doctor.

22. Meanwhile, on 31 January 1985 the applicant applied for the

authorisation independently to practise as a doctor. This was rejected

by the Zurich Health Direction on 11 September 1985 on the ground that

the applicant was not "trustworthy" as required by the Health Act

(Gesundheitsgesetz) for this authorisation. The Health Direction found

that the applicant, by bringing Mrs. E. de V. to her flat, had in fact

undertaken a medical act within the meaning of Section 7 of the Act.

23. The applicant's appeal (Rekurs) was on 1 October 1986 dismissed

by the Zurich Council of State (Regierungsrat) which found that the

applicant, by writing out bills for his treatment of Mrs. E. de V.,

had violated Section 7 para. 1 (a) of the Health Act. This finding was

not affected by the fact that the District Court had on 13 January 1986

acquitted the applicant. The Council of State noted in particular that

the applicant himself had in his bill referred to his treatment as

instances of medical work.

24. The applicant filed a further appeal (Beschwerde) with the

Zurich Administrative Court (Verwaltungsgericht) in which he requested

the authorisation independently to practise as a doctor. On 11 March

1987 the Court dismissed the appeal, though it determined a waiting

period for the applicant until the beginning of 1988 for applying for

a new authorisation.

2. Proceedings before the Federal Court

25. The applicant's then lawyer subsequently filed a public law

appeal (staatsrechtliche Beschwerde) numbering 73 pages on which the

Federal Court (Bundesgericht) deliberated in public on 22 October 1987.

According to the subsequent decision of the Federal Court of that date,

five judges participated in the deliberations and later in the decision

on the applicant's public law appeal (see below, Relevant domestic

law).

26. The applicant's lawyer, who was present, later described the

deliberations in a statement to the applicant. According to this

statement, judge X., as Rapporteur, proposed to uphold as a whole the

applicant's public law appeal and to grant him the authorisation to

practise.

27. According to the lawyer's statement, judge Y., who acted as

Co-Rapporteur, was upset about the extraordinary length of the public

law appeal statement. As it had been far too long for him, he had only

read it up to about page 30. He had also not been able to study the

documents, as due to an error on the part of the Court Chancellery

these had only been at his disposal one day before the deliberations.

28. On 22 October 1987 the Federal Court gave its decision in which

it quashed the waiting period imposed on the applicant. The remainder

of the public law appeal was dismissed. According to a document

submitted by the applicant, the Federal Court took its decision by four

votes to one, namely the vote of judge Rapporteur X.

29. In its decision the Federal Court first rejected certain

complaints as being inadmissible though it noted that exceptionally it

could in such cases, if the public law appeal was successful, not only

quash the contested decision but also order the granting of the

authorisation requested if all the other conditions were met. The

Court also noted that professional medical practice (gewerbsmäßig

ausgeübte Tätigkeit als Arzt) fell under the protection of Article 31

of the Swiss Federal Constitution (Bundesverfassung; see below,

Relevant domestic law).

30. The Federal Court then dealt inter alia with the authorities'

reproach that the applicant had treated Mrs. E. de V. without the

necessary permission. The Court concluded that at least two reproaches

levelled against the applicant appeared relevant in respect of his

trustworthiness. In one case he has exercised a medical activity

without the permission to practise. Also, when issuing the bill he had

mixed medical and non-medical activities, and had employed a form of

the Emergency Service, thereby creating the impression that it

concerned exclusively medical services.

31. The applicant then filed a request for reopening the

proceedings before the Federal Court on the ground that the Court had

given a decision without knowing the case-file.

32. On 14 March 1988 the Court dismissed this request. Its

decision first summarised the deliberations on 22 October 1987 as

follows:

"At the public deliberation one judge expressed his

dissatisfaction that the documents had not been available for a

sufficiently long period of time [beforehand they had been transmitted

to a supplementary judge participating at the session]; therefore, he

had been able to read thoroughly only the first 35 pages of the - much

too long - public law appeal statement which numbered 73 pages."

"Anlässlich der öffentlichen Beratung äusserte ein Richter seinen

Unmut darüber, dass die Akten nicht genügend lange auflagen [sie waren

zuvor dem an der Sitzung teilnehmenden Ersatzrichter zugesandt worden];

er habe deswegen nur die ersten 35 Seiten der - viel zu langen - 73

Seiten umfassenden Beschwerdeschrift gründlich lesen können."

33. The Court then considered that the applicant's complaint did

not correspond to any of the statutory reasons for reopening the

proceedings and therefore dismissed the applicant's request.

34. The applicant submitted three further requests for the

reopening of the Federal Court's proceedings which were dismissed by

the Federal Court in decisions of 5 May and 23 August 1988 and 6 June

1989, respectively.

B. Relevant domestic law

35. Article 31 of the Swiss Federal Constitution enshrines the

right to commercial freedom (Handels- und Gewerbefreiheit). The

Federal Court has interpreted this provision as including a

constitutional right to freedom of private commercial and professional

activity. According to the Federal Court's case-law, Article 31 of the

Constitution also includes professional medical activities; on the

other hand, it does not include the exercise of public functions (see

Arrêts du Tribunal Fédéral [ATF] 111 Ia 186, 103 Ia 401; see also

above, para. 29). This right may be restricted, in particular by

requiring an authorisation to practise, in the public interest, inter

alia for the protection of order and health. A restriction of this

constitutional right can be contested by means of a public law appeal

before the Federal Court (see Article 84 para. 1 [a] of the Federal

Judiciary Act [Organisationsgesetz]).

36. Section 7 para. 1 (a) of the Zurich Health Act requires an

authorisation from the Health Direction if it is intended, against

remuneration or professionally, to determine or to treat illnesses,

injuries or other health disturbances or generally to undertake medical

acts (medizinische Verrichtungen).

37. Section 8 para. 1 of the Zurich Health Act states:

"The Health Direction will grant the authorisation if the

applicant meets the professional requirements of this Act, if he is

trustworthy and if he is not suffering from a mental or bodily disorder

which renders him manifestly unable to exercise his profession."

"Die Direktion des Gesundheitswesens erteilt die Bewilligung,

wenn der Gesuchsteller die durch dieses Gesetz verlangten fachlichen

Anforderungen erfüllt, vertrauenswürdig ist und nicht an einem

geistigen oder körperlichen Gebrechen leidet, das ihn zur

Berufsausübung offensichtlich unfähig macht."

38. As regards the proceedings before the Federal Court, Section

38 para. 1 of the Federal Judiciary Act states that, with the exception

of penal, bankruptcy and disciplinary matters, the proceedings with the

parties (Parteiverhandlungen) before the Court as well as its

deliberations and votes are as a rule conducted in public.

39. According to Section 9 of the Federal Court's Regulations

(Reglement für das Schweizerische Bundesgericht), the Presidents of the

Divisions (Abteilungen) of the Federal Court distribute the cases among

the judges of their Divisions who will undertake the task of judge

Rapporteur (Berichterstattung) in a certain number of cases.

40. Section 11 of the Regulations determines that the President of

the Division concerned convenes the sessions by means of agenda lists

(Traktandenlisten) which must be distributed at least six days in

advance. The files of the cases stated on the agenda lists must be

available for consultation at the latest when the sessions are

convened.

41. Section 12 of the Regulations states that at the deliberations

the President first gives the floor to the judge Rapporteur, then to

the other members. The President speaks last.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

42. The Commission has declared admissible the applicant's

complaint under Article 6 para. 1 (Art. 6-1) of the Convention

concerning the proceedings before the Federal Court.

B. Point at issue

43. Accordingly, the issue to be determined is whether there has

been a violation of the applicant's right to a fair hearing, as

guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention, in that

a Federal Court judge decided on the applicant's public law appeal

without having had the opportunity to read the entire case-file.

C. Applicability of Article 6 para. 1 (Art. 6-1) of the Convention

44. The first issue to be decided is whether Article 6 para. 1

(Art. 6-1) of the Convention applies to the proceedings at issue.

45. Article 6 para. 1 (Art. 6-1) of the Convention states, insofar

as relevant:

"In the determination of his civil rights and obligations or of any

criminal charge against him, everyone is entitled to a fair and public

hearing within a reasonable time by an independent and impartial

tribunal established by law."

46. The Government submit that Article 6 para. 1 (Art. 6-1) of the

Convention is not applicable in the present case. The European Court

of Human Rights has so far not dealt with the issue whether the request

to exercise the medical profession falls under the scope of Article 6

para. 1 of the Convention. With reference to the Commission's Report

in the Karni case (see Karni v. Sweden, Comm. Report 15.12.88) the

Government submit that such an authorisation is an administrative act,

subject to certain conditions, and does not grant any subjective right.

In the present case, the authorisation was refused on the ground that

the applicant was not trustworthy, which is a matter of appreciation.

As a result, his request for an authorisation did not concern a "right"

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

Even if it did, it would fall into the domain of public law and not

concern a "civil" right.

47. The Commission, in its examination of whether Article 6 para.

1 (Art. 6-1) of the Convention is applicable, has first considered

whether there was a dispute ("contestation") over a right.

48. The Commission is not called upon to rule on the general

question of the right in Switzerland independently to practise as a

doctor. On the other hand, the Commission notes that the applicability

of Article 6 para. 1 (Art. 6-1) of the Convention is not excluded

solely by the fact that the dispute at issue concerned the applicant's

readmission to a professional activity after his authorisation for this

activity had been withdrawn (see Eur. Court H.R., H. v. Belgium

judgment of 30 November 1987, Series A no. 127B, pp. 31-34, paras.

37-48).

49. The Commission recalls that the "rights" referred to in Article

6 para. 1 (Art. 6-1) are those which can be said, at least on arguable

grounds, to be recognised under domestic law. This provision does not

in itself guarantee any particular content of the substantive rights

recognised in the laws of the Contracting States (see Eur. Court H.R.,

H. v. Belgium judgment, loc. cit., p.31, para. 40). Furthermore, the

dispute concerning this right must be "genuine and of a serious nature"

(see Eur. Court H.R., Benthem judgment of 23 October 1985, Series A

no. 97, p. 15, para. 32). It may concern both questions of fact and

law (cf. Eur. Court H.R., Van Marle and Others judgment of 26 June

1984, Series A no. 101, p. 11, para. 32).

50. In the present case the applicant obtained his diploma in

medicine in 1981. Since then he has been working inter alia as an

assistant doctor; in respect of this activity he does not require an

additional authorisation in the Canton of Zurich. Moreover, from 1982

to 1983 the applicant was authorised independently to work as a doctor,

though the authorisation was withdrawn as he no longer resided in the

Canton of Zurich.

51. The proceedings at issue concerned the applicant's renewed

request for an authorisation independently to practise as a doctor. The

request was refused on 11 September 1985 by the Zurich Health Direction

on the ground that the applicant was not "trustworthy" within the

meaning of Section 8 para. 1 of the Zurich Health Act. The decision

was eventually upheld by the Federal Court on 22 October 1987 though

it quashed the waiting period imposed on the applicant.

52. The Commission notes that there is a constitutional right under

Swiss law, derived from Article 31 of the Federal Constitution, to

freedom of professional activity. According to the Federal Court's

case-law this right includes professional medical activity (see above,

para. 35). Moreover, the applicant could arguably claim that, contrary

to the conclusions of the Swiss authorities, he was "trustworthy"

within the meaning of Section 8 para. 1 of the Zurich Health Act.

53. The Commission therefore finds that, in the proceedings at

issue, the Swiss authorities had to determine a "dispute"

("contestation") concerning a right, asserted by the applicant, within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

54. The next issue is whether the disputed right was a "civil" one

within the meaning of this provision.

55. According to the Convention organs' case-law, "the concept of

'civil rights and obligations' cannot be interpreted solely by

reference to the domestic law of the respondent State" (see Eur. Court

H.R., König judgment of 28 June 1978, Series A no. 27, p. 29. para.

88). Moreover, Article 6 (Art. 6) does not cover only "private-law

disputes in the traditional sense, that is disputes between individuals

or between an individual and the State to the extent that the latter

had been acting as a private person, subject to private law" (loc. cit.

p. 30, para. 90). Accordingly "only the character of the right at

issue is relevant" (loc. cit.).

56. In the present case the Commission notes that according to

Article 31 of the Swiss Federal Constitution, as interpreted by the

Federal Court, a distinction is made between a right to private

professional activity and the exercise of public functions which is not

guaranteed by Article 31. Medical professional activity is expressly

included among the private professional activities (see above, para.

35).

57. It is true that the applicant's activity may have certain

public aspects, in particular the responsibility of a doctor for the

health of society at large. However, as in the König case, the

applicant's activity is carried out in the private sector through the

conclusion of contracts between him and his patients. The fact that

this activity is subject to administrative authorisation, provided for

by law and in the interest of public order and public health, cannot

automatically convert the applicant's activity into a public law one

(see Eur. Court H.R., König judgment, loc. cit. p. 31, paras. 91-92).

58. In consequence, what was at stake was a "civil" right within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

59. There remains the question whether Article 6 para. 1 (Art. 6-1)

applies to proceedings in which, as in the present case, the Federal

Court was acting as a constitutional court (see Eur. Court H.R., Bock

judgment of 29 March 1989, Series A no. 150, p. 18, para. 37, with

further references).

60. The Commission considers that, if the applicant's public law

appeal had been successful, the Federal Court could not only have

quashed the contested decision but also ordered the granting of the

authorisation requested if all the other conditions were met (see above

para. 29). The Federal Court's decision was therefore "capable of

affecting the outcome of the case" (see Eur. Court H.R., Bock

judgment, loc. cit.).

61. It follows that Article 6 para. 1 (Art. 6-1) of the Convention

was applicable in the proceedings before the Federal Court.

D. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention

62. The applicant complains that contrary to Article 6 para. 1

(Art. 6-1) of the Convention a Federal Court judge decided on 22

October 1987 on his public law appeal without knowing the case-file.

63. The Government submit that, rather than concentrating on an

isolated incident, due consideration must be given to the fact that the

applicant's new request for an authorisation was dealt with thoroughly

by various instances, namely the Zurich Health Direction and the Zurich

Council of State each in a decision of 9 pages, the Zurich

Administrative Court in a decision of 27 pages, and the Federal Court

in a decision of 16 pages.

64. As regards the proceedings before the Federal Court, the

Government submit that the complaint is unfounded. They distinguish

between the file of the Federal Court, consisting of the public law

appeal statement, the contested decision and the further submissions

of the parties, and the Cantonal file. The latter may be consulted a

number of days before the hearing at the Federal Court's Chancellery.

Knowledge of the Rapporteur's Report and the Cantonal file will suffice

for a judge to be in a position to decide on the allegations. Moreover

judge Y. did not avail himself of the opportunity to request

adjournment of the decision which he could have done if he did not feel

at ease with regard to the case-file.

65. The Commission observes that Article 6 para. 1 (Art. 6-1) of

the Convention entitles everyone in the determination of his civil

rights to "a fair hearing ... by an independent and impartial tribunal

established by law". The right to a fair hearing includes, inter alia,

the right for the parties to the proceedings to make submissions which

they regard as relevant to their case.

66. The Commission further recalls that the Convention does not

intend to guarantee rights that are theoretical or illusory, but rights

that are practical and effective (Eur. Court H.R., Artico judgment of

13 May 1980, Series A no. 37, p. 16, para. 33). It follows therefrom

that the parties' right under Article 6 para. 1 (Art. 6-1) of the

Convention to file submissions can only be regarded as being effective

if these submissions are actually "heard" in the sense that they are

duly considered by the court concerned.

67. In the present case the Commission observes that the

deliberations of the Federal Court are as a rule held in public (see

above, para. 38). This was also the case in respect of the

deliberations and the decision concerning the applicant's public law

appeal on 22 October 1987.

68. Moreover, it is undisputed that, when deliberating on the

applicant's public law appeal, judge Y. complained that the documents

had not been available for a sufficiently long time. As a result, he,

judge Y., who had been appointed as Co-Rapporteur, had only been able

to read 35 pages of the public law appeal statement numbering 73 pages.

After the deliberations the Federal Court dismissed the applicant's

public law appeal by four votes to one.

69. Thus one of the Federal Court judges decided on the applicant's

public law appeal without having read all the documents of the case.

An issue arises whether in this respect the applicant had a fair

hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

70. The Commission considers it unnecessary to examine whether, as

the Government point out, the Federal Court judges had sufficient other

documents before them when deliberating on the case, e.g. the so-called

Cantonal file and the Rapporteur's Report. The Commission also finds

it unnecessary to examine whether the right to a fair hearing within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention requires

a court comprehensively to read and consider statements of the parties

which are extensive and yet manifestly irrelevant to the case.

71. It suffices to point out that the impression given by judge Y.

at the deliberations on 22 October 1987 was that he wanted to read the

entire public law appeal statement, but could not do so. Thus, judge

Y. must have regarded the document as being pertinent to the case. In

fact, it was the document leading to the proceedings before the Federal

Court. Although judge Y. had not read the entire document, he then

nevertheless participated in the judgment dismissing the applicant's

public law appeal.

72. In the Commission's opinion a party is not effectively heard

where a judge participates in the case without having acquainted

himself with all the material which he regards as possibly relevant to

the outcome of the case. The applicant did not therefore have a fair

hearing in the determination of his civil rights within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention.

E. CONCLUSION

73. The Commission concludes, by 14 votes to 5, that there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Opinion dissidente de MM. F. MARTINEZ et J.-C. GEUS à laquelle se

rallient MM. F. ERMACORA et B. MARXER

Nous ne pouvons nous rallier à la conclusion de la majorité selon

laquelle il y aurait violation de l'article 6 pour la seule raison

qu'une des cinq juges a déclaré, avant l'audience, n'avoir pas eu le

temps de prendre connaissance de l'acte d'appel du requérant dans sa

totalité.

Dans toute procédure menée devant un organe juridictionnel

collégial, il appartient au seul juge rapporteur d'avoir une

connaissance exhaustive du dossier avant l'audience, son rôle étant de

présenter, à l'intention de ses collègues, les faits de la cause, les

problèmes juridiques qu'elle pose et les arguments que les parties ont

exposés par écrit. Ces arguments seront d'ailleurs développés

oralement par les plaideurs. Au cours du délibéré, le juge rapporteur

pourra, le cas échéant, compléter les explications qu'il a déjà données

et les autres juges pourront relire l'une ou l'autre pièce dont

l'audience aurait révélé l'importance particulière.

Cette manière de procéder n'empêche pas chaque juge de se

prononcer en toute connaissance de cause, ce qui est évidemment

essentiel. En revanche, exiger que chaque membre de la formation de

jugement ait étudié de façon approfondie une affaire complexe avant

l'audience aurait pour résultat de multiplier par trois, cinq ou plus,

la durée du traitement des dossiers, avec la conséquence inévitable de

rendre très problématique le respect du "délai raisonnable" imposé par

l'article 6. En tout état de cause, la Convention n'impose pas de

délai au-delà duquel la méconnaissance du dossier par un juge serait

de nature à porter atteinte au caractère équitable du procès. Le

respect du caractère contradictoire des débats, et donc des droits de

la défense, exige au contraire que les magistrats forgent leur opinion

au stade ultime de la procédure, et, en tout cas, après avoir entendu

les parties.

En l'espèce, on ne pourrait même pas soutenir que le juge Y. se

serait rallié aux vues du juge rapporteur, faute d'avoir pu se faire

une opinion par lui-même, puisqu'ils ont voté en sens contraire. C'est

la raison pour laquelle nous estimons que rien ne permet de mettre en

doute le caractère équitable du procès.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

______________________________________________________________________

2 April 1988 Introduction of the application

15 June 1988 Registration of the application

Examination of the Admissibility

8 September 1989 Commission's decision to invite

the Government to submit

observations on the admissibility

and merits of the application

concerning issues under Article 6

para. 1 of the Convention

22 December 1989 Government's observations

21 January 1990 Applicant's observations in reply

9 October 1990 Commission's decision to declare the

application partly admissible

Examination of the Merits

2 March, Commission's consideration of the 13 April )

state of proceedings 7 September 1991)

9 October 1991 Commission's deliberations on the

merits and final vote

15 October 1991 Adoption of the Report

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KRASKA v. SWITZERLAND

KRASKA v. SWITZERLAND

LEXI