CONCURRING OPINION OF JUDGE BERNHARDT, JOINED BY JUDGE BINDSCHEDLER-ROBERT AND JUDGE MATSCHER

I share the opinion of the majority of the Court that in this case Article 6 (art. 6) has not been violated. But my reasoning is somewhat different.

In the present judgment ( paras . 28, 30 and 33), as in the judgments of 8 December 1983 in the Axen case (Series A no. 72, paras . 28, 31 and 32) and (partly) in the case of Pretto and others (Series A no. 71, para. 26), the "particular circumstances of the case" and "the special features of the proceedings in question" are emphasised; this reasoning gives the impression that in general Article 6 para. 1 (art. 6-1) of the Convention requires public hearings and the public pronouncement of a decision in cassation proceedings also, and that only the special circumstances of a case dispense from compliance with this requirement. I think that the publicity requirement contained in Article 6 para. 1 (art. 6-1) should be understood in a different way.

Public hearings and the public pronouncement of judgments are absolutely necessary (except in the cases enumerated in the second sentence of Article 6 para. 1 (art. 6-1)) whenever a person is faced with a criminal charge and the competent court has to deal with questions of fact and law. The object and purpose of Article 6 para. 1 (art. 6-1) are to guarantee a fair hearing, inter alia, through the public character of the hearing and the public pronouncement of the judgment at least in the first instance, and probably also in appeal proceedings if the facts and the law can be reviewed at that stage. However, the situation is different in cassation proceedings if the only issue is whether the lower court has correctly interpreted the law. It seems to me to be possible and necessary to give the publicity requirement in Article 6 para. 1 (art. 6-1) a restrictive interpretation in this respect, taking into account the fact that publicity is, as far as Article 6 (art. 6) is concerned, not an end in itself but a means of protecting the right of the individual.

The present judgment rightly points out (para. 33) that - as far as "public pronouncement" is concerned - many member States of the Council of Europe have recourse to means other than public pronouncement for making judgments known to the public. Nevertheless, it is also true that in many countries public hearings are obligatory and held in cassation proceedings only if exceptional circumstances are involved, but not in normal cases in which solely questions of law are discussed. Article 6 para. 1 (art. 6-1) can and should be interpreted restrictively, in conformity with this long-standing practice.

It goes without saying that the hearing must be fair at all stages of the procedure. In cassation proceedings also, the person faced with a criminal charge must have the opportunity of submitting his arguments and, if there is a public hearing, of taking an active part therein (see the Court ’ s Pakelli judgment of 25 April 1983 , Series A no. 64).

[*]  Note by the registry: In the version of the Rules applicable when proceedings were instituted.  A revised version of the Rules entered into force on 1 January 1983 , but only in respect of cases referred to the Court after that date.