JOINT PARTLY DISSENTING OPINION OF JUDGES WILDHABER, COSTA, RESS, TÃœRMEN, BÃŽRSAN, JUNGWIERT, MARUSTE AND UGREKHELIDZE

(Translation)

We disagree with our colleagues on one point: we find no violation of Article 6 § 1 of the Convention on account of the lack of a hearing during the domestic proceedings, for several reasons.

In the first place, the Court's case-law has never required oral proceedings in all circumstances. In many trials a written procedure may be sufficient, for example, where a litigant has expressly or tacitly waived his entitlement to a hearing, or where the dispute does not raise any public-interest issues making oral submissions necessary, or, when there is only one level of jurisdiction – which is not the case here – in exceptional circumstances. Relevant authorities include Håkansson and Sturesson v. Sweden (judgment of 21 February 1990, Series A no. 171-A, pp. 20-21, § 67), which concerned a dispute over the lawfulness of a sale; Schuler-Zgraggen v. Switzerland (judgment of 24 June 1993, Series A no. 263, pp. 19-20, § 58), concerning an appeal to the Federal Insurance Court about an invalidity pension; Allan Jacobsson v. Sweden (no. 2) (judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 169, § 49), concerning an appeal to the Supreme Administrative Court, ruling at first and last instance, against a refusal of planning permission; and the inadmissibility decision of 25 April 2002 (Third Section) in Lino Carlos Varela Assalino v. Portugal (no. 64336/01), concerning an application for a will to be declared null and void and for a declaration of unworthiness to inherit.

That case-law lays down three criteria for determining whether there are “exceptional circumstances” which justify dispensing with a public hearing: there must be no factual or legal issue which requires a hearing; the questions which the court is required to answer must be limited in scope and no public interest must be at stake. In the present case these three conditions were satisfied.

Secondly, Mr Göç, who had been held in police custody for forty-eight hours, claimed compensation under Law no. 466 on the payment of compensation to persons unlawfully arrested or detained. Law no. 466, which imposes a strict-liability rule on the State, provides for compensation to be paid to the victim for the pecuniary and non-pecuniary damage resulting from his unlawful detention. The claim must be accompanied by the relevant documents and the quantum depends on the complainant's financial and social situation. There is no more to the procedure than that. Admittedly, the applicant did allege in addition before our Court that he had been the victim of ill-treatment, but that complaint was declared inadmissible in the Chamber's decision of 9 November 2000, and in any event Law no. 466 does not constitute a legal basis for an award of compensation for ill-treatment by the Turkish authorities. Such a claim should have been submitted to the civil courts in the context of civil proceedings. Consequently, the Karşıyaka Assize Court had to settle a very simple dispute, in that it needed to do nothing more than assess the amount of compensation to be awarded to Mr Göç, on the basis of the file alone. That was a technical exercise which could be completed in the light of the sums awarded in previous cases. And there was nothing to prevent the applicant from submitting his arguments in support of his claim to the Assize Court in writing.

Thirdly, the Assize Court meticulously established the facts of the case on the basis of the reporting judge's report. It is significant that the applicant, in his appeal to the Court of Cassation, did not contest the facts as established by the Assize Court – the court of first instance – nor did he raise any point of law, restricting himself to complaining of the amount he had been awarded.

Fourthly, Mr Göç's claim was dealt with expeditiously, in keeping with the rationale of Law no. 466, which set up a fast-track procedure for settling claims of this nature. Requiring domestic courts to hold a hearing every time a claim raising no particular problems is submitted to them might practically frustrate the objective of complying with the “reasonable time” requirement in Article 6 § 1 of the Convention. Moreover, the Rules of our own Court provide that it may dispense with a hearing if it does not need one; in practice, it actually does so more often than not in Chamber cases. Otherwise, it would be in great danger of failing to rule within a reasonable time, or indeed of being paralysed, and it is not desirable for the European Court of Human Rights to require domestic courts to do what it cannot impose on itself.

Fifthly, the hearing which the reporting judge is empowered to hold by section 3 of Law no. 466 has all the characteristics of a public hearing, in that both parties, that is to say the claimant and the Treasury representative, are present and the hearing is open to the public. In the present case the reporting judge saw no reason to hold such a hearing, nor did the claimant ask for one. Seeing that no public interest made oral submissions necessary in what was a purely technical matter, and without wishing to question the applicant's good faith, we think that that implicit waiver, which was nevertheless unequivocal within the meaning of the judgments cited above, makes his complaint of the lack of a hearing somewhat artificial.

We wish to conclude with a more general observation. The case-law requirement of “exceptional circumstances”, referred to in paragraph 47 of the judgment, for a decision to dispense with a hearing before a court ruling

at first and last instance, is in our opinion questionable. Such reasoning is too simple to be applied to complex legal situations. It would be more appropriate to say that the circumstances should be typical for certain types of procedure, like the specifically regulated compensation procedure which was at issue in the present case, in which a hearing is not normally required. In this typical procedure the balance between individual interests and the public interest has already been taken into account in the establishment of the procedural rules as such. It is only in more exceptional situations that the need for an oral hearing has to be shown. The method of solving legal problems by “type”, that is to say by introducing, on the basis of a careful assessment of the competing interests, a specific procedure which normally does not call for a hearing, is one of the classic methods for the solution of problems of a more or less technical nature.

All in all, while understanding the reasoning of the majority, we were regretfully unable to subscribe to it.