DISSENTING OPINION OF JUDGES CREMONA , GANSHOF VAN DER MEERSCH, WALSH AND MACDONALD

We regret that we do not find ourselves in agreement with the majority of the Court on the question of whether the judgment of the Military Court of Cassation was pronounced publicly in accordance with Article 6 para. 1 (art. 6-1) of the Convention. We are of opinion that the failure to do so in the present case constituted a violation of Article 6 para. 1 (art. 6-1). We are also of opinion that our conclusion on the question of public access to the judgment of the Military Court of Cassation is borne out by the decisions of this Court recently given in the Axen and Pretto cases.

Having regard to the object and purpose of the publicity requirement enshrined in that provision, elaborated by the Court in its judgment in this case, we feel it is necessary to emphasise the particular importance of the accessibility of the judgment to the general public. If the basic underlying concept of public scrutability is to be a reality, a restricted access to judgments such as existed in the present case, i.e. restricted only to persons who could establish an interest to the satisfaction of a court official, falls short of what is required by that provision of the Convention. Public knowledge of court decisions cannot be secured by confining that knowledge to a limited class of persons.

Neither the annual roneotyping of the judgments of the Military Court of Cassation after appreciable delay nor the subsequent publication of some of those judgments in printed form in volumes covering a number of years (in the present case the judgment was published only after an interval of some six years) is sufficient to comply with the requirements of the said provision. Furthermore, it is to be noted that even such publication is not required by law but depends solely on voluntary initiative.

While it must be acknowledged that the Federal Army (Constitution of Courts and Criminal Procedure) Act of 28 June 1889 has now been replaced by the Federal Military Criminal Procedure Act of 23 March 1979 , which now requires the Military Court of Cassation to deliver judgment in open court, the present case was and remains governed by the 1889 Act.

SUPPLEMENTARY OBSERVATIONS OF JUDGE GANSHOF VAN DER MEERSCH IN SUPPORT OF HIS DISSENTING OPINION

(Translation)

To interpret restrictively a right guaranteed by the Convention is not consonant with the latter ’ s object and purpose as they are indicated in the preamble both to the Convention itself and to the Statute of the Council of Europe, the organisation within which the Convention was conceived and concluded.

This is why I cannot agree with the limiting conditions which the judgment finds to be sufficient to meet the requirements of Article 6 (art. 6) of the Convention.

As in the case of the Axen and Pretto judgments, which have just been cited, I regret that I cannot accept that, as regards the conditions for assuring the public character of proceedings, a distinction should be drawn between "courts of cassation" (see paragraph 33 of the judgment) and other courts. The determination of the issue of law is liable to put in question, as regards its very basis, the justification for the lower court ’ s decision.

Furthermore, I would add that my inability to agree with the conditions in which the judgment accepts that the publicity requirements of Article 6 (art. 6) of the Convention are satisfied is reinforced by the fact that this was a criminal matter ("bill of indictment" and sentence of "ten days ’ imprisonment") and that in this area the guarantees of publicity must be strictly implemented.