DISSENTING OPINION OF MR. H.G. SCHERMERS JOINED BY MR. B. MARXER

     In my opinion the aim of the wording "everyone is entitled to a

fair and public hearing" in Article 6 (1) is to guarantee that any

litigant must have the possibility to bring his arguments before the

tribunal. One should not interpret the word "hearing" as meaning that

this must necessarily be done orally. It is the possibility of raising

the arguments which is at stake.

     The essence of the requirement of Article 6 that a hearing must

be public is to guarantee that court judgments can be supervised by

public opinion. Could a court rule in complete secrecy, then a risk for

arbitrariness or insufficient care would rise. The simple fact that

courts can be criticised by legal opinion offers an element of control,

and without any control, no institution can function well.

     It is less relevant whether the hearing is conducted in writing

or orally. Indeed, the practice of the Contracting States show a great

variety of solutions. Broadly speaking common-law inspired countries

give preference to oral arguments, whilst on the continent written

proceedings are often preferred. Supervision can be exerted over

written documents as well as over oral hearings.

     In ordinary criminal cases oral hearings may be essential to

assess the facts and in order to offer the judge some insight into the

personality of the accused. In ordinary civil cases an oral hearing may

also be essential to establish the facts. The legal arguments, on the

other hand, can be better brought in writing than orally. Therefore,

when a question is purely legal there is no real need for an oral

hearing. The hearing can equally well be in writing.

     One of the major problems in Europe is the length of proceedings

in many countries. This problem is a consequence of the overburdening

of the judiciary. It is of the greatest importance to help the courts

to give speedy decisions. If such decisions can be given equally well

on the basis of written arguments a requirement to put the legal

arguments also orally will only delay the judgments.

     In my opinion, therefore, it should be considered in each

individual case whether an oral argument is necessary. If there are no

facts on which the court may want to ask questions of the parties, if

the factual situation is clear, if the legal arguments can be brought

out in writing and if these legal arguments are sufficiently accessible

to the public to guarantee that the written hearing is a public

hearing, then the sacrifice in time, or the extra burden on the courts

required by an oral hearing would not be justified. In stages in the

proceedings subsequent to the trial at first instance the European

Court of Human Rights accepted this in a number of cases (see, e.g.

Jan-Ã…ke Andersson judgment of 29 October 1991, Series A 212 B, p. 45,

para. 27). Usually, the issues to be decided when courts review, as in

the present case, the lawfulness of administrative action are also of

such a nature that an oral hearing may be dispensed with - even at

first instance. The legal arguments which predominate in such

proceedings can often be better brought in writing than orally.

     In Sweden the written arguments brought by the parties are

public. In the present case, therefore, there is no lack of public

control. Neither have I found any argument why the absence of oral

pleadings has caused any damage to the applicant. Looking at the court

proceedings as a whole I do not find a violation of Article 6.

                          APPENDIX I

                    HISTORY OF PROCEEDINGS

Date                         Item

_________________________________________________________________

9 April 1991                 Introduction of the application

9 October 1991               Registration of the application

Examination of Admissibility

6 January 1992               Commission's deliberations and

                             decision to invite the Government to

                             submit observations on the

                             admissibility and merits of the

                             application

7 May 1992                   Government's observations

5 June 1992                  Applicant's observations in reply

12 October 1992              Commission's decision to declare the

                             application admissible

23 October 1992              Communication to the parties of the

                             text of the decision on admissibility

Examination of the merits

9 February 1993              Commission's deliberations on the

                             merits, final vote and adoption of

                             the Report