PARTLY DISSENTING OPINION OF JUDGE RESS JOINED BY JUDGE MARUSTE

1. The reasoning in the judgment of the original Chamber was based on the idea that the violation of the right to an adversarial procedure also covers the lack of an oral hearing. The Grand Chamber nevertheless takes the view, like the two dissenting Judges Makarczyk and Türmen in the Chamber judgment, that the two complaints are distinct and therefore require separate consideration (see paragraph 46 of the judgment). In my view, it is the right to an adversarial procedure which is fundamental to a fair trial, regardless of whether this right is guaranteed by an oral hearing or a written procedure. A violation of the right to an adversarial procedure in the instant case will therefore normally cover other violations resulting from the same procedure, as was held in the original Chamber's judgment. Nevertheless, and on further reflection, I would not exclude that there may be cases where the lack of an oral hearing cannot be covered by a finding of a violation of the right to an adversarial procedure, regardless of whether or not an oral hearing in the specific case is really necessary. The Court takes the view that “given the fundamental nature of the right to a public hearing, of which the right to an oral hearing is one aspect, ... the applicant's complaint under this head cannot be taken to be absorbed by a finding that his right to an adversarial procedure was breached” (see paragraph 46 of the judgment). In my opinion, the starting-point should be the fundamental nature of the right to an adversarial procedure of which the right to be heard, be it in an oral or written procedure, is one of the basic aspects. This different perspective may also explain the difference between the approaches taken by the original Chamber and the Grand Chamber.

2. In the circumstances of the present case, an oral hearing was not necessary. To that extent, I have joined and contributed to the opinion of the other judges in their partly dissenting opinion.