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R. v. SWITZERLANDSEPARATE OPINION OF MR. H. DANELIUS

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Document date: September 9, 1993

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R. v. SWITZERLANDSEPARATE OPINION OF MR. H. DANELIUS

Doc ref: • ECHR ID:

Document date: September 9, 1993

Cited paragraphs only

SEPARATE OPINION OF MR. H. DANELIUS

JOINED BY MR. S. TRECHSEL

I agree with the conclusion of the Commission that there has

been a violation of Article 6 para. 1 of the Convention in the

present case. However, in regard to the issue of an oral

hearing, I wish to make the following additional observations.

It follows from the Håkansson and Sturesson judgment that

a party's failure to request an oral hearing can in many

circumstances be interpreted as a tacit waiver of the right to

such a hearing. The question arises whether such an

interpretation would be justified also in the present case.

According to Section 62 of the Swiss Federal Judiciary Act,

an oral hearing before the Federal Court is in principle

compulsory in non-pecuniary civil cases. The exceptions referred

to in Section 60 para. 2 of the Act concern cases where it is

clear that an appeal must be rejected on the ground of being

unfounded.

This being the legal background, it is obvious that the

applicant, when appealing to the Federal Court, wished his appeal

to be dealt with under Section 62, which would automatically lead

to an oral hearing being held, and not under Section 60 para. 2,

which would result in the rejection of his appeal. Consequently,

the fact that he did not specifically request an oral hearing

cannot, in these circumstances, be interpreted as a tacit waiver

of such a hearing.

For these reasons, and having regard to the fact that the

Federal Court was the only court which dealt with the applicant's

case, I agree with the Commission in finding that the rejection

of the appeal without an oral hearing was not in conformity with

the requirements of Article 6 para. 1 of the Convention.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

31 October 1990 and

21 January 1991 Introduction of the application

7 February 1991 Registration of the application

Examination of Admissibility

6 January 1992 Commission's decision to invite the

Government to submit observations on

the admissibility and merits of the

application

12 March 1992 Government's observations

17 April 1992 Applicant's observations in reply

12 October 1992 Commission's decision to declare the

application in part admissible and in

part inadmissible

Examination of the merits

5 December 1992 Commission's consideration of the

state of proceedings

31 August 1993 Commission's deliberations on the

merits, final vote

9 September 1993 Adoption of the Report

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