PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES JOINED BY JUDGES ZUPANČIČ AND SPIELMANN

I agree with the majority that the present case concerns proceedings which were criminal and thus attracted the guarantees of Article 6 of the Convention under that head. However, I am unable to join the majority in finding that the requirement of an oral hearing could be dispensed with in this case or any other criminal case.

This is the first time the Court has found that an oral hearing may not be required in a criminal case. The Court has previously found that the obligation to hold such a hearing was not absolute in respect of certain civil proceedings. Without entering into the question whether the approach regarding civil proceedings was justified or not by the terms of Article 6 of the Convention, I must, from the outset, stress the point that there is a great difference between civil proceedings and criminal proceedings in many respects affecting the requirement of an oral hearing. First of all because criminal proceedings are more serious than civil proceedings and entail the attribution of criminal responsibility with the consequent stigma – a stigma which exists in any event, regardless of the severity of the relevant criminal charge, even though it may be more or less serious depending on the degree of such severity. Secondly, in a criminal trial there is a confrontation between on the one side the State, exercising its power to enforce the criminal law, and on the other side the individual(s). Thirdly, the express terms of Article 6 regarding the minimum rights of persons charged with a criminal offence, under paragraph 3 (c), (d) and (e), clearly imply that the oral hearing is an unqualified and indispensable prerequisite for a fair criminal trial (“... to defend himself in person; ... to examine ... witnesses against him; ... to obtain the attendance and examination of witnesses; ... to have the ... assistance of an interpreter if he cannot ... speak the language used in c ourt”).

The requirement of a public hearing in judicial proceedings has been challenged during the drafting of certain international instruments, but even where this challenge has been successful, as in the case of the American Convention on Human Rights, the guarantee of a public hearing has been retained in respect of criminal proceedings.

It appears from the Court ’ s case-law that whenever the Court has found that a hearing could be dispensed with in respect of criminal proceedings at the appeal stage, it has always made it clear that a hearing should have taken place at first instance (see Axen v. Germany , 8 December 1983, § 28, Series A no. 72 ; Helmers v. Sweden , 29 October 1991, § 36, Series A no. 212- A ; and Jan- Åke Andersson v. Sweden , 29 October 1991, § 27, Series A no. 212- B ).

In Jan- Åke Andersson ( 29 October 1991 , opinion of the Commission, §§ 48-49 , Series A no. 212-B ), the Commission stated the following principles .

“ 48. The right of the accused to be present when a court determines whether or not he is to be found guilty of the criminal charges brought against him, and to be able to present to the court what he finds is of importance in this respect, is not only an additional guarantee that an endeavour will be made to establish the truth, but it also helps to ensure that the accused is satisfied that his case has been determined by a tribunal, the independence and impartiality of which he could verify. Thereby justice is from the accused ’ s point of view seen to be done. Furthermore, the object and purpose of Article 6 taken as a whole require that a person charged with a criminal offence has a right to take part in a hearing. Sub-paragraphs (c) and (d) of paragraph 3 guarantee the right to defend oneself in person and to examine or have examined witnesses and such rights cannot be exercised without the accused being present ( see also Eur. Court H. R., Colozza judgment of 12 February 1985, Series A no. 89, p. 14, § 27).

49. The guarantee of a fair and public hearing in Article 6 § 1 of the Convention is one of the fundamental principles of any democratic society. By rendering the administration of justice visible publicity contributes to the maintenance of confidence in the administration of justice. The public nature of the hearings, where issues of guilt and innocence are determined, ensures that the public is duly informed and that the legal process is publicly observable. ”

The Court has found as follows: “In addition, the object and purpose of Article 6, and the wording of some of the sub-paragraphs in paragraph 3, show that a person charged with a criminal offence ‘ is entitled to take part in the hearing and to have his case heard ’ in his presence by a ‘ tribunal ’ ... The Court infers, as the Commission did, that all the evidence must in principle be produced in the presence of the accused at a public hearing with a view to adversarial argument” ( see Barberà , Messegué and Jabardo v. Spain , 6 December 1988, § 78, Series A no. 146 ).

Furthermore, as t he Court has h eld on a number of occasions: “The public character of proceedings before the judicial bodies referred to in Article 6 § 1 protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, superior and inferior, can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention” (see, inter alia , Axen , cited above, § 25, and Sutter v. Switzerland , 22 February 1984, Series A no. 74 ).

The majority in this case accept that “... a certain gravity attaches to criminal proceedings , which are concerned with the allocation of criminal responsibility and the imposition of a punitive and deterrent sanction ...”, b ut they proceed to state that “ there are criminal cases which do not carry any significant degree of stigma ...” and that “[t] ax surcharges [as in

the present case] differ from the hard core of criminal law; consequently, the criminal-head guarantees will not necessarily apply with their full stringency ...” (see paragraph 43 of the judgment) .

I find it difficult, in the context of a fair trial, to distinguish, as the majority do in this case, between criminal offences belonging to the “hard core of criminal law” and others which fall outside that category. Where does one draw the line? In which category does one place tho se offences which on their face value do not appear severe, but if committed by a recidivist may lead to serious sanctions? I believe that the guarantees for a fair trial envisaged by Article 6 of the Convention apply to all criminal offences. Their application does not and cannot depend on whether the relevant offence is considered as being in “the hard core of the criminal law” or whether “it carries any significant stigma”. For the persons concerned, whom this provision of the Convention seeks to protect, all cases have their importance. No person accused of any criminal offence should be deprived of the possibility of examining witnesses against him or of any other of the safeguards attached to an oral hearing. Moreover , to accept such distinctions would open the way to abuse and arbitrariness.

I firmly believe that judicial proceedings for the application of criminal law, in respect of any offence, by the omnipotent S tate against individuals require, more than any other judicial proceedings, strict compliance with the requirements of Article 6 of the Convention so as to protect the accused “ against the administration of justice in secret with no public scrutiny”. As rightly pointed out by Trechsel “... the principle of public trial in criminal cases has an importance which goes beyond personal interests” [1] .

Therefore, once it was found (correctly) that the relevant proceedings in this case were criminal, the requirement of a public hearing in respect of them became a sine qua non . The failure to fulfil that requirement amounts, in my opinion, to a breach of Article 6 of the Convention.

[1] . Stefan Trechsel , Human Rights in Criminal Proceedings , p. 121.