CONCURRING OPINION OF JUDGE Sir Nicolas BRATZA

I agree with the majority of the Court in finding that there has been no violation of the Convention in the case of either applicant.

As to the complaint concerning the holding of the proceedings in camera, I fully share the reasoning of the majority, the decisive point in my view being that in both cases the county court judge exercised his independent discretion to exclude the public from the substantive hearing in the interests of the children concerned.

The complaint about the lack of public pronouncement of the judgments has caused me more difficulty. As the applicants correctly point out, the requirement in Article 6 § 1 that the judgment be pronounced publicly is, in contrast to that concerning the public nature of the hearing itself, expressed in unqualified terms. In this respect, Article 6 of the Convention differs from the equivalent provision in Article 14 of the International Covenant on Civil and Political Rights, which provides:

“The press and the public may be excluded from all or part of a trial for reasons of morals, public order ( ordre public ) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”

Further, in Campbell and Fell v. the United Kingdom (judgment of 28 June 1984, Series A no. 80, p. 43, § 90) the Court, noting both the terms of Article 17 of the Convention and the importance of the principle of publication, which had been emphasised in Sutter v. the United Kingdom (judgment of 22 February 1984, Series A no. 74), rejected the respondent Government’s argument that the principle could be regarded as subject to an implied limitation in cases in which disciplinary offences by prisoners were adjudicated on.

There is, moreover, force in the applicants’ argument which is reflected in the dissenting opinion of Judge Cremona and others in Sutter itself to the effect that:

“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 the knowledge to a limited class of persons.”

Despite the strength of these arguments, I am in the end persuaded that there was in the present cases sufficient compliance with the requirements of Article 6. My reasons can be summarised as follows.

1. It is apparent both from the wording of the respective texts and from the historical background that in the Convention system, as well as in the system established by the Covenant, stricter standards have been imposed as regards the publication of court judgments than as regards the public character of the underlying proceedings. In its original formulation in 1949, the draft of what became Article 14 of the Covenant was in similar terms to that of the present Article 6 of the Convention, the requirement that “the judgment shall be pronounced publicly” being subject to no qualification. This stricter approach was explained as reflecting “the view that some of the factors which might justify a secret hearing would not justify delivery of the judgment in private” (See Marc J. Bossuyt : Guide to the Travaux Préparatoires of the International Covenant on Civil and Political Rights (1987), p. 284). Following a proposal of the United States , an amendment was accepted in 1950 to add the qualification “except where the interest of juveniles otherwise requires”. In 1952 a further amendment was accepted to add the reference to matrimonial disputes and the guardianship of children (ibid., pp. 285-86).

The travaux préparatoires of the Convention, which was signed in November 1950, revealed no similar development. Nevertheless, I do not consider that the eventual difference in wording between the two provisions should necessarily lead the Court to apply a stricter standard when interpreting the Convention. On the contrary, having regard to the fact that the provisions in the two instruments were intended to reflect the same underlying philosophy, I consider that they should so far as possible be interpreted in a consistent manner.

2. It is well established that Article 6 § 1 of the Convention must be read as a whole. There is, as the majority judgment recognises, a logical relationship between the public nature of the proceedings and the public pronouncement of the judgment which is the result of those proceedings. If the public may legitimately be excluded from the hearing for the purpose of protecting the interests of children or the private lives of parties to a matrimonial dispute, the requirement that the judgment should be pronounced publicly should not be interpreted in such a way as to undermine that protection. It seems to me that it is not a satisfactory answer to this point to argue that the judgment could be entirely anonymised so that it contained no details capable of identifying the parties or the children concerned and/or abridged to the point where only the operative part of the court’s decision was made public. Even if such a course could be said to be adequate to protect the interests of the children or the parties concerned, it is difficult to see how the publication of a judgment so anonymised and

abridged could be said to serve the aim of public scrutability of judicial proceedings.

3. It is, moreover, clear from the case-law of the Court that, despite its unqualified terms, the requirement that the judgment shall be pronounced publicly has been interpreted with some flexibility, the Court emphasising that “in each case the form of publicity to be given to the ‘judgment’ under the domestic law of the respondent State must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6 § 1” (See Pretto and Others v. Italy , judgment of 8 December 1983, Series A no. 71, p. 12, § 26; and see, most recently, Szücs v. Austria and Werner v. Austria , judgments of 24 November 1997, Reports of Judgments and Decisions 1997-VII). Thus, for example, in Axen v. Germany (judgment of 8 December 1983 , Series A no. 72, p. 14, § 32), public delivery of a decision of a Supreme Court was held to be unnecessary, the requirements of Article 6 being met by the public pronouncement of the judgments of the lower courts. More immediately relevant to the present case, in Sutter , cited above, the Court held the requirements of Article 6 to be satisfied by the fact that “anyone who could establish an interest could consult or obtain a copy of the full text of the judgment of the Military Court of Cassation”. It is true that Sutter has been subject to some extra-judicial criticism. Nevertheless, there is nothing in my view in the subsequent case-law of the Court to cast a doubt on the authority of the decision: on the contrary, the case was expressly cited without disapproval in Campbell and Fell itself and, more recently, in Szücs and Werner , cited above.

4. The county court judgments in the present case, concerned as they were with contested applications held in camera for residence orders in respect of young children and involving details of the private lives of the parties, fell clearly within the category of judgment to which limited public access might be regarded as justified. As is noted in the judgment of the Court, a copy both of the full text of the judgment and of the orders made would have been available to anyone who could establish a legitimate interest in obtaining it. In particular there is no reason to believe that, had an application been made for the grandparents of the first applicant’s son to attend the hearing or to obtain a copy of the judgment, such an application would have been refused. In addition, as is demonstrated by the case of the first applicant, whose appeal against the refusal of his application for a residence order was dismissed in a publicly pronounced judgment, appeal proceedings are in practice held in open court and the judgment of the Court of Appeal is made fully accessible to the public.

In these circumstances, I consider that there was in the case of both applicants sufficient compliance with the publicity requirements of Article 6 § 1 of the Convention.