DISSENTING OPINION OF JUDGE GÖLCÜKLÜ CONCERNING ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 6 PARA . 1 (art. 14+6-1)

(Translation)

To my great regret, I cannot share the majority ’ s opinion as to the application of Article 14 taken together with Article 6 para. 1 (art. 14+6-1) of the Convention.

On this particular point the applicant criticised the Federal Insurance Court ’ s ruling on the decisive issue, namely for having reached the conclusion - based, according to the reasons it gave, on experience of life - that during the period in question (after the birth of her child) her activities would very probably have been limited to the role of mother in the matrimonial home if her health had been good.

This complaint of discrimination against her on the ground of sex, directed at a point of fact, is an issue of substance, whereas Article 6 para. 1 (art. 6-1) establishing the principle of a fair trial, being procedural in nature, relates only to formal issues.

In sum, what the applicant was challenging in the instant case was the reasons put forward by the Federal Insurance Court when it ruled on her appeal and not the fact of having suffered discrimination in the course of the proceedings in the national courts on account of belonging to the female sex; nor was any principle or standard of a fair trial infringed in regard to her.

I therefore conclude that there has been no breach of Article 14 taken together with Article 6 para. 1 (art. 14+6-1) on the ground of sex discrimination against the applicant.

PARTLY DISSENTING OPINION OF JUDGE WALSH

1.   In my opinion there has been a breach of Article 6 para. 1 (art. 6-1) of the Convention, concerning access to the Appeals Board ’ s file. That must necessarily include documents which should have been in it - namely, the pulmological report, which in fact was not in the file. That document was within the procurement of the Appeals Board and its non-availability to the applicant put her at a disadvantage.

2.   I am also of the opinion that there was a breach of Article 6 para. 1 (art. 6-1) by reason of the absence of an oral hearing in accordance with that Article (art. 6-1). The Rules of Procedure of the Federal Insurance Court provide for an oral hearing either on the application of the party or on the motion of the presiding judge. The Convention requires such a hearing unless the parties agree to waive it. The position is similar with regard to the public nature of the hearing: see Le Compte , Van Leuven and De Meyere v. Belgium [*] . No such agreement was secured from the applicant. Indeed it is not established that she was ever made aware of the possibility. I do not agree with the view of the majority of the Court (at paragraph 58 of the judgment) that because the applicant did not request an oral and public hearing she had "unequivocally waived her right ...". Article 6 (art. 6) throws no burden on an applicant to request a public hearing. Her civil rights were in issue. I cannot agree with the inference contained in the third sub-paragraph of paragraph 58 of the Court ’ s judgment. The fact that a matter that is highly technical, even if this was so which is questionable, may induce the parties to agree to avoid the type of hearing envisaged by Article 6 para. 1 (art. 6-1) is not a ground for denying such a hearing, particularly when the applicant had not so agreed.

Furthermore the fact that the dispute does not appear to raise "issues of public importance" is not a condition precedent to the operation of Article 6 para. 1 (art. 6-1). The dispute was undeniably important to the applicant and she is the party whose protection was envisaged by that provision of the Convention. The private citizen is thus enabled to pierce the bureaucratic veil or curtain. The fact that her private right was created by public law made the application of Article 6 para. 1 (art. 6-1) all the more important. That such application may be thought to be inconvenient for the "demands of efficiency" by the bureaucracy can scarcely be regarded as a justification for ignoring the requirements of the Article (art. 6-1).

3.   I agree with the Court ’ s findings in respect of Article 6 taken with Article 14 (art. 14+6).

[*]  The case is numbered 17/1992/362/436.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 263 of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.

[*]  Note by the registry: 23 June 1981 , Series A no. 43.