CONCURRING OPINION OF JUDGE COSTA

(Translation)

Albeit grudgingly, I have voted in favour of the finding of a violation of Article 6 § 1 by Sweden .

M y natural tendency would have been to consider that the absence of a hearing in this case was justifi ed by the nature of the issues of fact and law that were to be determined . In my opinion, it was possible to rule that the issues were technical in nature and could be satisfactorily settled solely on the basis of the file . The case is close to that of Schuler - Zgraggen v. Switzerland ( judgment of 24 June 1993 , Series A no. 263 ), which also concerned a disability pension . Admittedly , M r Miller wished to have doctors and those employees of the Social Insurance Office who had participated in the contested decision called as witnesses . Normally, however, examination of the medical certificates included in the case file would have been enough to compensate for the non-appearance of such witnesses . Social security is a technical area, and has nothing in common with, for example, criminal matters, where the oral character of deliberations and the hearing of witnesses are of great importance.

Two elements, however, have prompted me to join the majority . In the first place, there has been a certain judicial obduracy against the applicant ' s position . In turn , the Administrative Cour t of Appeal and the Supreme Administrative Court dismissed the applicant ' s request for a hearing to rule on whether he was to be granted leave to appeal and on the merits, and they subsequently also refused to grant such leave. Thus , M r Miller ' s case was examined by only one level of jurisdiction, without an oral hearing . That in itself is not decisive, but it is a factor to be taken into account .

Above all, however, the Grand Chamber judgment in Göç v. Turkey ( no. 36590/97, ECHR 2002 ‑ V ) shows that the Court ' s position has become more stringent. More than in the past, the Court seems to require that an individual must be able to present his or her personal circumstances orally before the courts . Although I was one of the eight judges who expressed a dissenting opinion in this connection in the Göc judgment , I feel bound to comply with the Court ' s previous finding.

Nonetheless, I should like to see the Court take a more flexible approach in the future. Written proceedings ( which the Court itself generally uses ) are frequently reconcilable with the proper administration of justice; they do not always result in unfair proceedings .

DISSENTING OPINION OF JUDGE BAKA JOINED BY JUDGE JUNGWIERT

(Translation)

I disagree with the majority of the Court that there has been a violation of Article 6 § 1 of the Convention in the present case.

Like the majority, I also think that the right to a public hearing - specially at the first instance level - is an essential safeguard of judicial procedure. Under Article 6 § 1 and its interpretation in the case-law of the Court there is a general entitlement to an oral hearing unless exceptional circumstances justify dispensing with such a hearing ( Håkansson and Sturesson v. Sweden , judgment of 21 February 1990, Series A no . 171-A, p. 20, § 64, or more recently, Göç v. Turkey (GC), no. 36590/97, §§ 47-52 ECHR 2002-V).

In a number of judgments the Court has also pointed out that the exceptional character of the circumstances that may justify dispensing with an oral hearing essentially comes down to the nature of the issues to be decided by the competent national court, not to the frequency of such situations. In other words, the Court has tried to strike the right balance between transparency and important elements of procedural safeguards on one hand, and practical functionality and the every day reality of the different national courts on the other.

Applying the above principles to the present case , I am convinced that on the basis of the special circ umstances of the present case the County Administrative Court was justified in dispens ing with an oral hearing. Not on the ground that the proceedings before the Swedish administrative courts were in principle in writing nor on the ground that disputes concerning benefits under social security schemes are generally technical ones. I took into account however the fact that the applicant ' s claim, the figures and his medical assessment had already been established and all the relevant documents were available for the County Administrative Court to be able to take a decision.

The only open question in the present case was whether the extra costs in curred before the applicant ' s 65th birthday owing to his illness could be covered by the disability bene fit under the relevant Swedish l aw. I think that in this situation to establish the applicant ' s degree of disability 13 years before the matter was brought before the courts the requested oral hearing would have had a very limited value. The offered oral evidence from the applicant ' s doctor about his state of health 15 years earlier - with a very high probability - had to be based on the medical documents available at the ti me. In my view it was justifiable to dispense with an oral hearing owing to the exceptional circumstances, such as the limited scope of the rather technical case and the sign ificant amount of time which had elapsed since the events.

I also think that the case is different from the Göç case relied on by the majority. The subj ect matter of that case was financial compensation for unlawful detention decided by national courts without holding a hearing. That case would have required a careful assessment of the applicant ' s and his family ' s personal distress and anxiety during his detention and an evaluation of these personal factors for the determination of his financial compensation . Moreover, I think that even though the Court was divided in the Göç case, in that type of case the need for transparency and public scrutiny justifies public hearings more than in the Miller case , which was much more technical in nature.